Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest). (b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials. (c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 6 contracts
Sources: Lease (VCG Holding Corp), Lease (VCG Holding Corp), Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate or otherwise encumber all or any portion of its interest in this Lease or any interest therein, and shall not sublet in the Premises or grant any license in or suffer any person other than Tenant or its employees to use or occupy the Premises, or any part thereof, without obtaining the prior written consent of Landlord, which consent shall, subject to Subparagraphs 11(d), (e), (f), and (g) below, not be unreasonably withheld. Any such attempted assignment, subletting, license, mortgage, hypothecation, other encumbrance or other use or occupancy without the consent of Landlord shall be null and void and of no effect. For purposes of application of Subparagraphs 11(b), (c), (d), (e), (f) and (g) below, any mortgage, hypothecation or encumbrance of all or any right portion of Tenant's interest in this Lease or privilege appurtenant theretoin the Premises and any grant of a license or sufferance of any person other than Tenant or its employees to use or occupy the Premise, or allow any part thereof, shall be deemed to be an "assignment" of this Lease. In addition, as used in this Paragraph 11, the term "Tenant" shall also mean any entity that has guaranteed Tenant's obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No permitted assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one (the employees, agents, servants and invitees of 1) subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment.
(c) If Tenant excepted) desires at any time to occupy assign this Lease or use to sublet the Premises, or any portion thereof, without it shall first obtaining notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the written consent name of Landlordthe proposed assignee or subtenant; (ii) the nature of the proposed assignee's or subtenant's business to be carried on in the Premises; (iii) the terms and provisions of the proposed assignment or sublease, which consent will not shall be unreasonably withheldexpressly subject to the provisions of this Lease; (iv) in the case of a sublease, conditioned the portion of the Premises proposed to be sublet; and (v) such financial and other information as Landlord may reasonably request concerning the proposed assignee or delayed and will not subtenant.
(d) At any time within thirty (30) days after Landlord's receipt of the information specified in Subparagraph 11(c) above, Landlord may, by written notice to Tenant, elect (i) to sublease from Tenant the Premises or the portion thereof so proposed to be withheld if subleased by Tenant, or to take an assignment of Tenant's leasehold estate hereunder, or such part thereof as shall be specified in said notice, upon the same terms as those offered to the proposed subtenant or assignee, subtenant as the case may be, except that the Rent payable by Landlord in the case of a sublease to Landlord shall be the same Rent per square foot as is payable by Tenant hereunder for the same period; or transferee is reputable(ii) to terminate this Lease as to the portion of the Premises so proposed to be subleased or assigned (which may include all of the Premises), has equal with a proportionate abatement in the Rent payable hereunder. In the case where Landlord elects to sublease space, receive an assignment from Tenant or better credit than Tenant and terminate all or any guarantor portion of this Lease at pursuant to this Subparagraph 11(d), Landlord may thereafter release the time space affected to Tenant's proposed assignee or subtenant, without liability to Tenant. If Landlord does not exercise any option set forth in this Subparagraph 11(d) within said thirty (30) day period, Tenant may, within ninety (90) days thereafter, into a valid assignment or sublease of the subject transactionPremises, or portion thereof, upon the terms and conditions set forth in the information furnished by Tenant to Landlord pursuant to Subparagraph 11(c) above, subject, however, in each instance, to (i) Landlord's consent under Subparagraph 11(a) above, and has substantial experience (ii) Landlord's receipt of a fully executed counterpart of such assignment or sublease. If Landlord elects to exercise its option to sublet or receive an assignment from Tenant (or terminate this Lease) as to any portion of the Premises, (i) Landlord and its subtenants shall have the right to use in common with Tenant all lavatories, corridors and lobbies within the Premises, the use of which is reasonably required for the use of such sublet, assigned or terminated space, and (ii) Tenant shall have no right of set off or right to assert a default hereunder by reason of a default by Landlord under such sublease.
(e) Tenant acknowledges that it shall be reasonable for Landlord to withhold its consent to a proposed assignment or sublease if (i) the use to be made of the Premises by the proposed assignee or subtenant is (A) not generally consistent with the character and nature of other tenants in the operation Building or the Project or would result in a heavier burden (in comparison to that resulting from tenant's use of such portion of the Permitted Use. Any assignment Premises) of the Building, the project, the systems, the structures or subletting the Common Areas thereof, (B) in conflict with any "exclusive" or similar use or signage rights of another Project tenant, or (C) prohibited by any provision of this Lease, including, without limitation, the rules and regulations then in effect; (ii) the character, moral stability, reputation or financial responsibility of the proposed assignee or subtenant are not reasonably satisfactory to Landlord; (iii) in the case of a proposed mortgage, hypothecation or other encumbrance of Tenant's leasehold estate, (A) the proposed assignee or subtenant requests relief from any provision of this Paragraph 11 or this Lease, including, without limitation, those provisions requiring assumption of this Lease by each assignee or subtenant and continuous occupancy of the Premises, (B) the proposed mortgage, hypothecation or encumbrance is of less than the entire leasehold estate, or (C) the proposed assignee or subtenant cannot reasonably demonstrate to Landlord that such consent mortgage, hypothecation or encumbrance will not impair or adversely affect any of Landlord's rights hereunder; (whether actual iv) in the case of a sublease, (A) the portion of the Premises proposed to be sublet is not a single, self-contained unit of space with access to restrooms and exits in conformance with applicable Law or deemedotherwise cannot be the subject of a valid certificate of occupancy, or (B) the proposed transaction is a sublease of a sublease hold interest; or (v) the proposed assignee or subtenant is an existing tenant or subtenant in the Project.
(f) The voluntary or other surrender of this Lease by Tenant or a mutual cancellation hereof shall be voidnot constitute a merger, and shall, at the option of Landlord, constitute either terminate all or any existing subleases or subtenancies or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenants a default corporation which is not the issuer of any security registered under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent Section 12(b) or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%Section 12(g) of the voting stock Securities Exchange Act of Tenant 1934, or which Tenant owns greater than fifty is an unincorporated association, trust or partnership in excess of twenty- five percent (5025%) in the aggregate during the term hereof of all classes the total stock or interest in such corporation, association, trust or partnership, the transfer, assignment within the meaning of stock this Paragraph 11; provided, however, that Landlord shall not withhold its consent and the provisions of Subparagraphs (or all classes d) and (g) of partnership or membership interest).
(b) Tenant this Paragraph 11 shall provide Landlord not apply to transactions described in the foregoing sentence with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider corporation (i) the relative financial strength, business reputation and operational/management experience of into or with which Tenant and the proposed subtenant is merged or assigneeconsolidated, (ii) any history that the proposed subtenant to which substantially all of Tenant's assets are transferred, or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether that controls, is controlled by or is under common control with Tenant so long as in each such case, (A) the use successor of Tenant has a net worth, calculated in accordance with generally-accepted accounting principles (and evidenced by financial statements inform reasonably satisfactory to Landlord) equal to the greater of the Premises after net worth of Tenant immediately prior to such sublease transaction or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form net worth of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that the original Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions hereunder as of the date of this Lease, (ivB) provide for assumption by an assignee all provisions of all this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇), (▇) and the termsconsent requirements of Subparagraph (a), covenants and conditions which this Lease requires Tenant shall apply to performsuch transactions, and (vC) include a requirement Tenant shall present proof reasonably satisfactory to Landlord that any subtenant attorn the parties to the transaction were not attempting to avoid the application of Subparagraphs (d) and (g) of this Paragraph 11. If Tenant consists of more than one (1) person, a purported transfer, assignment, mortgage, hypothecation or other encumbrance, voluntary, involuntary or by operation of law, by any one of the persons executing this Lease of all or part of such person's interest to this Lease shall be deemed an assignment within the meaning of this Paragraph 11. Each assignee, sublessee, licensee, mortgagee or other transferee, other than Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, shall assume in a form writing satisfactory to Landlord, as set forth herein. all obligations of Tenant under this Lease and shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred be jointly and severally liable for review the performance of such assignment or sublease and all other materials submitted by Tenant in connection with of the request for Landlord’s consent, whether or not such assignment or sublease is approvedprovisions hereof. Notwithstanding anything else in this article contained, as a condition the foregoing and without prejudice to Landlord’s 's right to require a written approval of assumption from each assignee, any sublease by Tenantperson or entity to whom this Lease is assigned, Landlord may require that it shall be entitled to including, without limitation, assignees pursuant tot the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess provisions of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantBankruptcy Code, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.11 U.S.
Appears in 5 contracts
Sources: Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc), Office Lease (Worldwide Wireless Networks Inc)
Assignment and Subletting. (a) Tenant TENANT shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this Lease Lease, or any interest thereinsublet, and shall not sublet rent, or permit occupancy or use of the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of LandlordLANDLORD, which nor shall any subletting, assignment or transfer of this Lease or the right of occupancy hereunder be effected by operation of law or in any manner other than with the prior written consent will of LANDLORD. LANDLORD'S written consent shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting or transfer with or without such LANDLORD'S consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent waiver or release of TENANT from liability hereunder for the payment of rent or the performance and observance of any of the Terms and conditions of this Lease. The collection or acceptance of rent from any assignee, subtenant, or occupant shall not constitute a waiver by Landlordor release of TENANT from any covenant or obligation contained in this Lease, nor as a release shall any assignment or subletting be construed to relieve TENANT from obtaining the consent in writing of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent LANDLORD to any subsequent assignment, further assignment or subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant In the event that TENANT desires to assign or sublet all or a portion of the Premises, TENANT shall provide Landlord with give to LANDLORD sixty (60) days written notice of TENANT'S intention to do the same, the name, address and a copy of any proposed sublease or assignment that contains the name and address current financial statement of the proposed subtenant or assignee, and a copy of the anticipated proposed assignment or sublease, specifying, among other items, the proposed use, the Term and rent of the proposed sublease or assignment. In such event, LANDLORD shall have the option to (i) sublet such portion of the Premises from TENANT at the Base Rent set forth herein, or (ii) to terminate this Lease, for the entire Premises or for the affected portion of the Premises, as of the effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) give notice of consent or disapproval. Within thirty (30) days after receipt of said notice, LANDLORD shall give written notice to TENANT, stating whether LANDLORD approves or disapproves the use of proposed assignment or sublease, or whether LANDLORD shall exercise its option to sublet or terminate as set forth above. In the event the LANDLORD does not exercise its option to sublet the Premises or to terminate this Lease as heretofore provided, TENANT may sublet or assign the Premises only after first obtaining the written consent of LANDLORD, such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsconsent to not unreasonably be withheld.
(c) If Landlord consents In the event that TENANT defaults hereunder, TENANT hereby assigns to a proposed LANDLORD the rent due from any subtenant or assignee of TENANT and hereby authorizes each such subtenant or assignee to pay said rent directly to LANDLORD.
(d) Upon any sublease or assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee all option rights, right of all the terms, covenants and conditions which this Lease requires Tenant to performrefusal, and (v) include a requirement that expansion rights, shall terminate and be of no further force or effect. Further, TENANT shall not have the right to exercise any subtenant attorn to the Landlord. Landlord’s consent will not be effective such option rights, rights of refusal, or expansion rights unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it TENANT shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess occupancy of the Rent required to be paid by Tenant hereunder. In Premises at the absence time of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexercise.
Appears in 5 contracts
Sources: Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc), Lease Agreement (Old Line Bancshares Inc)
Assignment and Subletting. (a) 28.1 Tenant shall not (voluntarilytransfer, by operation of law or otherwise) dispose, assign, transfer, mortgage, pledgeor hypothecate this Lease, hypothecate in whole or encumber this Lease in part, or any interest therein, and shall not sublet permit the use of the Premises by any person or any part thereofpersons other than Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use sublet the Premises, or any portion thereof, part thereof (each of the foregoing shall be a “Transfer”) without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant in Landlord’s sole discretion. Such prohibition against Transfer shall include any transfer by operation of law and any guarantor transfer of this Lease at from the time Tenant by merger, consolidation, transfer of assets, or liquidation. In the subject transactionevent that Tenant hereunder is a corporation, and has substantial experience an unincorporated association, or a partnership, the transfer, assignment, or hypothecation of any stock or interest in such corporation, association, or partnership in the operation aggregate in excess of the Permitted Use. twenty percent (20%) in any continuous twelve-month period shall be deemed a Transfer requiring Landlord's prior consent.
28.2 Any assignment or subletting Transfer without such Landlord’s consent (whether actual or deemed) shall shall, at Landlord’s sole discretion, be void, and shallshall constitute a default hereunder which, at the option of Landlord, constitute a default under shall result in the terms termination of this LeaseLease or exercise of ▇▇▇▇▇▇▇▇’s other remedies hereunder. Acceptance of Rent by Landlord from anyone other than Tenant Consent to any Transfer shall not be construed operate as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a necessity for consent to any subsequent assignmentTransfer, sublettingand the terms of such consent shall be binding upon any person holding by, occupation under, or use through Tenant.
28.3 If this Lease or all or any portion of the Premises is Transferred or occupied by another person. Notwithstanding anything any person other than Tenant, Landlord may collect rent and other charges from such other party and apply the amount collected to the contrary in this Paragraph 13rent and other charges reserved hereunder, but such collection shall not constitute consent or waiver of the necessity of consent to such Transfer, nor shall such collection constitute the recognition of such assignee, sublessee, or other party as Tenant hereunder or a release of Tenant from the further performance of all of the covenants and obligations of Tenant herein contained. In the event that Landlord shall consent to a Transfer, Tenant may assign or sublet the Premises without the prior written consent of Landlord, shall pay to an entity which currently owns more than fifty Landlord a fee equal to ten percent (5010%) of one month’s rent for expenses incurred in connection with processing of documents necessary to the voting stock giving of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleasesuch consent, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as consent a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess copy of the Rent required to be paid by Tenant hereunder. In proposed transfer document and adequate financial information for the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transferee.
Appears in 5 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublessee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to the Tenant within thirty (30) days after the Tenant's offer is received by the Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until the Landlord accepts the Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment the duration of Landlord shall have the term of any proposed sublease, and right to re-acquire the amount of space any proposed subtenant will occupyportion affected. In additionIf the Landlord elects to reacquire under this provision the portion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept the Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ shall have the right to receive from the Tenant any profit realized by the Tenant from charging a higher rent that the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by the Tenant, relevant business history minus the Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by the Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and leasehold improvements installed by the State of ColoradoTenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to the Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit the Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which the Landlord consents to a proposed assignment or sublease, and are reserved by the form Landlord from the grant of such assignment or sublease the Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord require the Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (so long as the Landlord's consent is not unreasonably withheld). Any exercise of the Landlord's rights under Paragraphs 24(a) and (b) shall (i) incorporate this Lease in its entirety and be subject deemed to its terms, (ii) provide that be reasonable. Failure of any subtenant or assignee to make any payments to Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions not affect the obligation of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that pay the lease rent or any subtenant attorn other obligation under the Lease owing to the Landlord. Landlord’s consent will The provisions of any sublease or assignment cannot be effective unless modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of the Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and until Tenant delivers to owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinassuming Tenant's obligations. Tenant shall pay have the right, without Landlord’s reasonable fees, not 's consent to exceed One Thousand Dollars assign this Lease to a corporation if ($1,000.00), incurred for review of such assignment or sublease 1) Tenant owns and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess retains at least 51% of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration outstanding capital stock of the transfer of corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 4 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. (a) A. Neither Tenant shall not (voluntarily, nor Tenant’s legal representatives or successors in interest by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber otherwise shall transfer this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the receiving Landlord’s prior written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned subject, however, to the minimum threshold provisions of this Section 13. For purposes of this section, a “transfer” shall mean any of the following: (i) an assignment of this Lease; (ii) a collateral assignment, mortgage, or delayed and will other encumbrance involving this Lease; (iii) a sublease, license agreement, or other agreement permitting all or any portion of the Premises to be used by others. This subsection does not apply to a subsidiary or entity that is 51% or more owned by the Tenant; (iv) a reduction of Tenant’s assets to the point that this Lease is substantially Tenant’s only asset; (v) a change or conversion in the form of entity of Tenant which has the effect of limiting the liability of any of the partners, members, or other owners of the entity; (vi) the agreement by a third party to assume, take over, or reimburse Tenant for any of Tenant’s obligations under this Lease in order to induce Tenant to lease space from the third party; or (vii) any transfer of control of Tenant, which shall be withheld if the assignee, defined as any issuance or transfer of stock in any corporate tenant or subtenant or transferee is reputableany interest in any noncorporation entity tenant or subtenant, has equal by sale, exchange, merger, consolidation, operation of law, or better credit than Tenant and any guarantor otherwise, or creation of this Lease at the time new stock or interests, by which an aggregate of 50% or more of Tenant’s stock or equity interests shall be vested in one or more parties who are not stockholders or interest holders as of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms Date of this Lease. Acceptance This subsection shall not apply to sales of Rent stock by Landlord from anyone persons other than Tenant shall not be construed those deemed “insiders” within the meaning of the Securities Exchange Act of 1934 as a consent amended. Any modification or waiver by Landlord, nor as a release amendment to any sublease of Tenant, but any portion of the same Premises shall be taken to be deemed a payment on account further sublease of Tenantthis Lease. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary As used in this Paragraph 13section, Tenant may assign the term “transferee” shall include any assignee or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock subtenant of Tenant or which Tenant owns greater than fifty percent (50%) any other party involved in any of all classes of stock (the other transactions or all classes of partnership or membership interest)events constituting a transfer.
B. If Tenant requests Landlord’s consent to a transfer, it shall submit in writing to Landlord, not later than fifteen (b15) Tenant shall provide Landlord with a copy of days before any proposed sublease or assignment that contains anticipated transfer, (i) the name and address of the proposed subtenant or assigneetransferee, the anticipated effective date (ii) a duly executed counterpart of the proposed assignment, sublease or assignmentother form of transfer agreement, (iii) reasonably satisfactory information as to the duration nature and character of the term business of any the proposed subleasetransferee, as to the nature and character of its proposed use of the space, and otherwise responsive to the amount of space any proposed subtenant will occupy. In additioncriteria set forth in Subsection D, Tenant shall provide detailed and (iv) banking, financial, or other credit information regarding relating to the proposed subtenant’s or assignee’s transferee reasonably sufficient to enable Landlord to reasonably determine the financial condition responsibility and character of the proposed transferee, including balance sheets and profit and loss statements for the transferee covering the three years before the transfer, certified by the transferee, and a list of personal, banking, business, and credit history, relevant business history and experience, together with any other pertinent information which references for the transferee.
C. Landlord reasonably requires. Landlord may require an opportunity shall have the following options to meet and interview the proposed subtenant or assignee as well. For purposes be exercised within fifteen (15) Business Days from submission of Tenant’s request for Landlord’s consent to a specific transfer:
(1) If Tenant proposes to assign this Lease or sublet all or substantially all of the Premises, Landlord shall have the option to cancel and terminate this Lease as of the proposed sublease commencement date for the transfer.
(2) If Tenant proposes to sublet less than all or assignmentsubstantially all of the Premises, it Landlord shall have the option of canceling and terminating this Lease only as to that applicable portion of the Premises, effective as of the proposed commencement date of the sublease. If Landlord exercises this option, all Rent for the Premises shall be considered equitably apportioned as of the commencement date of the sublease and Landlord, at Tenant’s expense, shall perform all work and make all alterations as may be required physically to separate the applicable portion of the Premises from the remainder of the Premises and to permit lawful occupancy of the separated portion.
D. If Landlord does not elect either of the options provided above in Subsection C, Landlord shall not unreasonably withhold its consent to a proposed transfer. Landlord shall be deemed to have reasonably withheld or denied its consent to any proposed transfer unless all of the following conditions have been established to Landlord’s reasonable for Landlord satisfaction:
(1) The proposed transferee and/or its guarantor has sufficient financial wherewithal to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant discharge its obligations under this Lease and the proposed subtenant agreement of transfer and as determined by Landlord’s reasonable criteria for selecting Building tenants.
(2) The proposed transfer shall not, in Landlord’s reasonable judgment, cause physical harm to the Project or assignee, (ii) any history that the proposed subtenant Building or anyone has with material harm to the liquor licensing agencies reputation of the City Project or Building that would result in an impairment of Glendale and Landlord’s ability to lease space in the State Project or Building or cause a diminution in the rental value of Colorado, and space in the Building or Project.
(iii3) whether the The proposed use of the Premises after such sublease or assignment would create any nuisance or by the proposed transferee will be a use permitted under this Lease and not prohibited by the Rules and Regulations, and will not violate any federal, state restrictive covenants or local laws or involve Hazardous Materialsexclusive use provisions applicable to Landlord.
(c4) If The proposed transferee shall not be any person or entity who shall at that time be a tenant, subtenant, or other occupant of any part of the Building or Project. Notwithstanding the foregoing, Landlord consents will not withhold its consent solely because the proposed transferee is an occupant of the Building if Landlord does not have space available for lease in the Building that is comparable to a proposed assignment or subleasethe space Tenant desires to transfer. For these purposes, the form of such assignment or sublease Landlord shall be satisfactory deemed to have comparable space if it has space which will be available within six (6) months of the date of the proposed transfer on any floor anywhere within the Building which is approximately the same size as the space Tenant proposes to transfer, provided that if the space that Tenant proposes to transfer is contiguous to the space already leased by the proposed transferee, Landlord shall be deemed not to have comparable space.
(5) The proposed use of the Premises by the proposed transferee will not require alterations or additions to the Premises or the Building by Landlord (or any other entity resulting in costs to Landlord) to comply with applicable law or governmental requirements and will not negatively affect insurance requirements or involve the introduction of materials to the Premises that are not in compliance with the Environmental Laws, as said term is defined in Section 39 of this Lease.
(6) Any mortgagee of the Building will consent to the proposed transfer if such consent is required under the relevant loan documents, and such consent shall not be unreasonably withheld. Landlord acknowledges that no such requirement for consent currently exists.
(7) The proposed use of the Premises will not materially increase the operating costs for the Building or the burden on the Building services, or generate additional foot traffic, elevator usage, or security concerns in the Building, or create an increased possibility that the comfort or safety, or both, of Landlord and the other occupants of the Building will be compromised or reduced.
(8) The proposed transferee shall not be, and shall not be affiliated with, anyone with whom Landlord or any of its affiliates has been involved with in litigation material to the tenancy as an opposing party.
(i9) incorporate this Lease The proposed transfer will not cause a violation of another lease for space in the Building or give an occupant of the Building a right to cancel its entirety and lease.
(10) There shall be subject to its no default by Tenant, beyond any applicable grace period, under any of the terms, (ii) provide that Tenant shall remain liable under this Leasecovenants, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all Lease at the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement time that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless to a transfer is requested and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as on the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess date of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration commencement of the transfer term of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinproposed transfer.
Appears in 4 contracts
Sources: Lease Agreement, Office Lease, Office Lease (Summit Financial Services Group Inc)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than sixty (60) nor more than one hundred and eighty (180) days after the giving of such notice, (c) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, and (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto. Tenant’s Notice shall be unreasonably withhelddeemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as to any obligation which arises out of or results from the negligence or willful misconduct of Tenant, or any of its agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(c) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or Landlord’s designee).
(d) Any consent required of Tenant, as Landlord under the sublease, shall be deemed granted if consent with respect thereto is granted by Landlord under this Lease, and any failure of Landlord (or its designee) to comply with the provisions of the sublease other than with respect to the payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a default thereunder or hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option provided to it pursuant to Section 13.2, and provided that no Event of Default shall have occurred and be continuing under this Lease as of the time Landlord’s consent is requested by Tenant, Landlord’s consent (which must be in writing and in form and substance satisfactory to Landlord) to the proposed assignment or sublease shall not be unreasonably withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section 13.2 and Landlord shall not have exercised any of its options thereunder within the time permitted therefor;
(b) In Landlord’s judgment, the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (i) is in keeping with the then standards of the Building, and (ii) does not violate the restrictions set forth in Article 2;
(c) The proposed assignee or subtenant is a reputable Person with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with evidence thereof reasonably satisfactory to Landlord;
(d) In the event Landlord has space in the Building available for lease, then (i) neither the proposed assignee or subtenant nor any Person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or subtenant, is then an occupant of any part of the Building, and (ii) the proposed assignee or subtenant is not a Person (or Affiliate of a Person) with whom Landlord or Landlord’s agent is then, or has been within the previous six (6) month period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of assignment shall be reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 13, and Tenant shall deliver a true and complete original, fully executed counterpart of such sublease or other instrument to Landlord promptly upon the execution and delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as the case may be, shall execute and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, as set setting forth herein. Tenant the terms and conditions upon which Landlord shall pay Landlord’s reasonable fees, not have granted its consent to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or subletting, and the agreement of Tenant and such subtenant or assignee, as the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than five (5) occupants of the Premises (including Tenant);
(h) The amount of the aggregate rent to be paid by the proposed subtenant shall not be less than the then current market rent per rentable square foot for the Premises, determined as though the Premises were vacant, and the rental and other terms and conditions of the sublease shall be substantially the same as those contained in Tenant’s Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent upon demand, for (A) the actual, out-of-pocket costs and all other materials submitted expenses incurred by Tenant Landlord in connection with the request for assignment or sublease, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant and the cost of reviewing plans and specifications proposed to be made in connection therewith, and (B) Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else reasonable legal fees and disbursements incurred in this article contained, as a condition to connection with the granting of any requested consent and the preparation of Landlord’s written consent to the sublease or assignment;
(j) Tenant shall not have (i) advertised or publicized in any way the availability of the Premises without prior notice of and approval by Landlord, or (ii) listed the Premises for sublease or assignment with a broker, agent or otherwise at a rental rate less than the fixed rent and additional rent at which Landlord is then offering to lease comparable space in the Building;
(k) The proposed occupancy shall not impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant and such proposed subtenant or assignee shall agree with Landlord in writing to pay the costs of such additional services; and
(1) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any sublease by TenantTenant to Landlord or its designee pursuant to this Article 13, Landlord may require that it each sublease pursuant to this Section 13.6 shall be entitled subject to all of the receipt covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such sublease to Landlord or any such sublease to any other subtenant, or any acceptance of one hundred percent (100%) Fixed Rent or Additional Rent by Landlord from any subtenant, Tenant will remain fully liable for the payment of the Fixed Rent and Additional Rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on Tenant’s part to be observed and performed, and for all acts and omissions of any profit derived by Tenant as a result licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence obligations of this Lease, and any such agreement between Tenant and its subtenant, there will violation shall be deemed to be no profita violation by Tenant. If Landlord shall decline to give its consent to any proposed assignment or sublease, or if Landlord shall exercise either of its options under Section 13.2, Tenant shall deliver indemnify, defend and hold harmless Landlord against and from any and all documents pertaining to losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and disbursements) resulting from any claims that may be made against Landlord by the proposed assignee or subtenant arising from or in connection with such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryproposed assignment or subletting, or goodwill: but by any amount attributed to lease brokers or other Persons (with whom Tenant or its proposed assignee or subtenant may have dealt) claiming a commission or similar compensation in connection with the proposed assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 4 contracts
Sources: Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.), Sublease (Switch & Data, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilyagrees that it will not, by agreement, operation of law or otherwise, without Landlord’s prior written consent, (i) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease the Lease, in whole or any interest therein, and shall not sublet the Premises or any part thereofin part, or any right (ii) sublet, license or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) otherwise permit others to occupy or use the Premises, in whole or any portion thereofin part (all of the foregoing in clauses (i) and (ii) being referred to as a “Transfer”). Landlord shall base its decision on consent to a Transfer upon, without first obtaining among other factors, the written consent credit-worthiness, use, and reputation of Landlordthe proposed transferee, which consent assignee, sublessee, licensee or other occupant (a “Transferee”), and Landlord agrees that it will not be unreasonably withheldarbitrarily withhold its consent. No Transfer shall relieve or release Tenant from any liability or obligation under this Lease (and the transferring Tenant shall continue to have primary liability under this Lease, conditioned jointly and severally with the Transferee), nor shall any Transfer relieve or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and release any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment from any liability or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default obligation under the terms any guaranty of this Lease. Acceptance Tenant hereby acknowledges that among other reasons and factors, Landlord's disapproval of Rent any proposed Transfer shall be deemed valid and final if based upon any or all of the following factors: (i) the proposed Transfer would result in more than two subleases of portions of the Premises being in effect at any one time during the Term, or would result in any sublease premises or the remainder of the Premises (i.e., that not subleased) not having direct access to a Building common area corridor in manner which complies with applicable code; (ii) the net effective rent payable by the Transferee (adjusted on a rentable square foot basis) is less than the net effective rent then being quoted by Landlord for new leases in the Building for comparable size space for a comparable period of time; (iii) the proposed Transferee is an existing tenant of the Building or is negotiating with Landlord; (iv) the proposed Transferee is a governmental entity; (v) the portion of the Premises to be sublet or assigned is irregular in shape with inadequate means of ingress and egress; (vi) the use of the Premises by the Transferee (A) is not permitted by the use provisions hereof, or (B) violates any exclusive use granted by Landlord to another tenant in the Building (to the extent such exclusive is disclosed to Tenant); (vii) the Transfer would result in significant increase in the use of the parking areas or Common Areas by the Transferee's employees or visitors, and/or significantly increase the demand upon utilities and services to be provided by Landlord to the Premises; (viii) the Transferee does not have the financial capability to fulfill the obligations imposed by the Transfer; (ix) the Transferee is not in Landlord's opinion of reputable or good character or consistent with Landlord's desired tenant mix; or (x) the Transferee is a real estate developer or landlord or is acting directly or indirectly on behalf of a real estate developer or landlord. Tenant further agrees that if it intends to Transfer the entire Premises, it will first notify Landlord in writing and Landlord shall have fifteen (15) days to notify Tenant that Landlord, at its option may accept a surrender of the Premises, in which event Landlord shall release Tenant from anyone other than any further liability under this Lease from and after the date the Premises are surrendered. Tenant agrees to pay Landlord a minimum fee of $500.00, plus any reasonable out-of-pocket costs incurred by Landlord, for services rendered in respect to each request for consent to a Transfer. Any Transfer without Landlord’s prior written consent shall be a Default under this Lease, and at Landlord’s sole option, be deemed void. Any Transfer to which Landlord consents shall not be construed as a effective until the Transferee executes an acknowledgement of Landlord’s consent to the Transfer, assignment or waiver by subletting on Landlord’s standard form, nor as a release of Tenantand unless Landlord’s otherwise agrees, but the same any such Transfer shall be taken on Landlord’s standard form therefor. Consent to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Transfer shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personTransfer. Notwithstanding anything to In the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent event of Landlord, to an entity which currently owns more than fifty percent any Transfer (50%) provided Landlord has not accepted a surrender of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interestPremises).
(b) Tenant shall provide Landlord with a copy of , any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide rent that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease receives in excess of the Rent required to per Article 3 shall be paid by Tenant hereundersplit 50/50 between Landlord and Tenant. In For the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration purposes of the foregoing, any transfer, direct or indirect (e.g., through transfer of Tenant’s businessownership interests in the ownership entity or further upstream entity) of the ownership interests in Tenant (whether stock, trade namepartnership interests or membership interests or other), inventorywhether in one or more successive transfers, of either (i) a controlling interest, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax returnii) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemore than twenty-five percent (25%) interest, shall be included in Tenant’s profits as described hereindeemed an assignment.
Appears in 3 contracts
Sources: Commercial Office Lease, Commercial Office Lease (Technest Holdings Inc), Commercial Office Lease (Technest Holdings Inc)
Assignment and Subletting. (a) A. Tenant shall not (voluntarily, voluntarily or by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate assign or encumber its interest in this Lease Sublease or any interest thereinin the Demised Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Demised Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use any part of the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld. Any assignment, conditioned encumbrance, or delayed sublease without Landlord’s consent shall be voidable and, at Landlord’s election, shall constitute a default after the expiration of applicable notice and will cure periods. It shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and unreasonable for Landlord to withhold its consent to any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any proposed assignment or subletting without such consent (whether actual or deemed) shall be voidif the proposed transferee does not meet certain criteria, including, but not limited to, the transferee’s financial condition, the nature, quality, and shallcharacter of the transferee, at the option identity or business character of Landlordthe transferee, constitute a default under the terms nature of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personand occupancy and the transferee’s business experience. Notwithstanding anything to the contrary in this Paragraph 13foregoing, Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Sublease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with a copy of any proposed sublease by merger, consolidation or assignment that contains the name and address of the proposed subtenant reorganization, or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease7 T /s/ SDG purchaser of a substantial portion of Tenant’s assets (a “Permitted Transferee”); provided, the form of however, no such assignment or sublease shall be satisfactory relieve Tenant of any liability or obligations hereunder and, as a condition to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termsany such assignment or sublease, (iia) provide any assignee shall assume the obligations of Tenant hereunder in writing and (b) any subtenant shall acknowledge in writing that Tenant shall remain liable under this Lease, (iii) provide that the rights of such subtenant will comply with all are subject and subordinate to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment A sale or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock shall not be deemed an assignment, trade namesubletting or any other transfer of this Sublease or the Premises.
B. Landlord shall be free at all times, inventorywithout need of consent or approval by Tenant, to assign its interest in this Sublease and/or to convey fee title to the Demised Premises. Each conveyance by Landlord of Landlord’s interest in this Sublease or the Demised Premises prior to expiration or termination hereof shall be subject to this Sublease and, provided the transferee assumes in writing Landlord’s obligations hereunder, shall relieve the grantor of any further obligations or liability as Landlord, and Tenant shall look solely to Landlord’s successor in interest for all future obligations of Landlord. Tenant hereby agrees to attorn to Landlord’s successors in interest, whether such interest is acquired by sale, transfer, foreclosure, deed in lieu of foreclosure, or goodwill: but any amount attributed to lease assignment on any document concerning otherwise. Without further agreement, the transaction (including the assignee’s tax return) by assignee transferee of such title shall be conclusively established deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder during its ownership of the Demised Premises. Notwithstanding the foregoing, concurrently with the execution of this Sublease, Landlord shall obtain from the Master Landlord a written agreement in the form attached hereto as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included Exhibit “G”. Tenant acknowledges the Property is encumbered by a mortgage in Tenant’s profits as described hereinfavor of KeyBank National Association.
Appears in 3 contracts
Sources: Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.), Sublease (iRhythm Technologies, Inc.)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. In the absence of Tenant acknowledges and agrees that any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration right and interest of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed Landlord in and to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwillPremises, and thereforeall right and interest of the Landlord in this Lease, shall may be included in Tenant’s profits as described hereinconveyed, assigned or encumbered at the sole discretion of the Landlord at any time.
Appears in 3 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not nor sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, Premises without first obtaining the Landlord's written consent of Landlordconsent, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity determining whether to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to approve a proposed assignment or sublease, Landlord may consider without limitation the form proposed transferee's reputation and creditworthiness, the character of the business to be conducted by the proposed transferee at the Premises and the effect of such assignment or subletting on the tenant mix in the Building. In addition, Landlord shall have the right to approve the specific form of any assignment or sublease agreement. In no event shall Landlord be satisfactory obligated to Landlord and shall consent to any assignment or subletting which materially increases (i) incorporate this Lease in its entirety and be subject to its termsthe Operating Costs of the Building, (ii) provide that the burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Building or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the Building being unreasonably compromised or reduced. (For example, but not exclusively, Landlord may deny consent to an assignment or subletting where the space would be used for a school or training facility, an entertainment, sports or recreation facility, retail sales to the public, a personnel or employment agency, or an embassy or consulate or similar office. Landlord shall not be obligated to approve an assignment or subletting to (a) a current tenant of the Building or (b) a prospective tenant of the Building with whom Landlord is then negotiating. No such assignment or subletting shall relieve Tenant shall remain liable of any liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant . Consent to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with subletting shall not operate as a waiver of the request necessity for Landlord’s consent, whether or not such a consent to any subsequent assignment or sublease is approved. Notwithstanding anything else in this article containedsubletting, as a condition to Landlord’s written approval and the terms of any sublease by Tenant, Landlord may require that it such consent shall be entitled to the receipt of one hundred percent (100%) of binding upon any profit derived by person holding by, under or through Tenant. If Tenant as is a result of such sublease. Such profit is defined as corporation, then any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessthis Lease by merger, trade name, inventoryconsolidation or liquidation, or goodwill: but any amount attributed change in the ownership of, or power to lease assignment on any document concerning vote the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforemajority of its outstanding voting stock, shall be included in Tenant’s profits as described hereinconstitute an assignment for the purpose of this Section.
Appears in 3 contracts
Sources: Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc), Office Lease (Watchguard Technologies Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily21.1 Except as hereinafter provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and TENANT shall not sublet (which term shall include, without limitation, the granting of concessions, licenses and the like) all or any part of the Leased Premises nor assign this Lease unless, in each instance, the prior written consent of LANDLORD thereto has been obtained, which consent shall not be unreasonably conditioned, withheld or delayed. Without in any way limiting the generality of the previous sentence, unless LANDLORD has no comparable space which is available for leasing in the Building, TENANT shall not assign or sublet any part of the Leased Premises to (i) any other tenant in the Building, (ii) any party with whom LANDLORD is actively negotiating for space in the Building, or (iii) any party at rent lower than what LANDLORD is charging for comparable space in the Building; nor shall TENANT advertise the rent requested. TENANT may, subject to the terms, provisions, conditions and covenants of this Lease but without LANDLORD's consent, sublet all of the Leased Premises or assign this Lease to any entity controlling, controlled by or under common control with TENANT. Neither this Lease nor the Leased Premises, or any part thereof, shall be mortgaged by TENANT, nor shall TENANT mortgage, assign, pledge or otherwise transfer the interest of TENANT in and to any right sublease or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant rentals payable thereunder. Any such mortgage and any guarantor such sublease, assignment, pledge or transfer made in violation of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Section 21.1 shall be void, void and shall, at the option of Landlord, constitute a default under the terms of LANDLORD's election shall terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary provided in this Paragraph 13Lease, Tenant may assign LANDLORD's prior consent shall not be required in connection with an assignment of TENANT's interest in this Lease as a result of a merger or sublet consolidation of TENANT, or a sale of all or substantially all of TENANT's assets.
21.2 It shall be a condition of the Premises without validity of any assignment or sublease (i) that the prior written consent of Landlordassignee or subtenant agree in writing directly with LANDLORD, in substance and form satisfactory to LANDLORD, to an entity which currently owns more than be bound by all the obligations of TENANT hereunder, and (ii) that TENANT shall agree in writing, in substance and form satisfactory to LANDLORD, to pay to LANDLORD fifty percent (50%) of any and all amounts and consideration received at any time by TENANT from or on behalf of the voting stock assignee or subtenant in excess of Tenant (i) the Basic Annual Rent and Additional Rent, attributable to that portion of the Leased Premises so assigned or which Tenant owns sublet, and (ii) all reasonable costs and expenses incurred by TENANT in connection with such assignment or sublease, including brokers' fees, legal fees and the cost of improvements to the Leased Premises whether received by TENANT in the form of rent, additional rent, lump sum or installment payments or otherwise, for the entire period of such assignment or sublease, or any part thereof.
21.3 No such assignment or subletting shall relieve TENANT named herein of any of the obligations of TENANT hereunder, but TENANT named herein shall remain fully liable for the obligations of TENANT hereunder, including, without limitation, the obligation to pay Basic Annual Rent, additional rents and other amounts and charges provided for in this Lease.
21.4 TENANT shall, upon demand, reimburse LANDLORD for the reasonable legal fees and expenses incurred by LANDLORD in connection with any assignment or subletting of the Leased Premises, or any part thereof, and any request by TENANT therefor.
21.5 TENANT shall provide written notice to LANDLORD of TENANT's intention to assign or sublet any or all of the Leased Premises. Such notice shall specify with particularity the terms of the proposed assignment or sublease, and LANDLORD shall have twenty-one (21) days to respond.
21.6 If TENANT's request for assignment or subletting is for space greater than fifty or equal to twenty-five percent (5025%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant the Leased Premises, LANDLORD shall provide Landlord have the right to terminate this Lease with a copy of any proposed sublease or assignment that contains the name and address respect to said space as of the proposed subtenant or assigneecommencement date of said sublease. In the event of a recapture by LANDLORD, if this Lease shall be canceled with respect to less than the entire Leased Premises, the anticipated effective date Basic Annual Rent, Tenant's Tax Share and Tenant's Expense Share shall be adjusted on the basis of the proposed sublease or assignmentnumber of rentable square feet retained by TENANT in proportion to the number of rentable square feet contained in the original Leased Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the duration parties shall execute written confirmation of same. If LANDLORD recaptures only a portion of the term Leased Premises, it shall construct and erect at its sole cost such partitions as may be required to sever the space to be retained by TENANT from the space recaptured by LANDLORD. LANDLORD may, at its option, lease any recaptured portion of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity Premises to meet and interview the proposed subtenant or assignee as wellor to any other person or entity without liability to TENANT. For purposes of Landlord’s consent to a proposed sublease or assignment, it TENANT shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to any portion of the receipt of one hundred percent (100%) of any profit derived by Tenant as a result profit, if any, LANDLORD may realize on account of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant termination and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinreletting.
Appears in 3 contracts
Sources: Sublease Agreement (Color Kinetics Inc), Sublease Agreement (Smartbargains, Inc.), Lease Agreement (Color Kinetics Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as additional rent, 50% of amounts received by Tenant from its assignees, transferees or delayed subtenants in excess of: (i) the Basic and will not be withheld if Additional Rents payable by Tenant to Landlord hereunder and (ii) reasonable costs incurred by Tenant from the sublease including brokers fees, legal fees, and rent inducements. Tenant shall provide Landlord sixty (60) days written notice, advising Landlord of its intent to assign or transfer Tenant’s interest in the Lease or sublet the Premises or any portion thereof for any part of the term hereof. If Landlord provides its consent and Tenant is allowed to assign, transfer or sublet the whole or any part of the Premises, Tenant shall provide Landlord thirty (30) days written notice of its intended assignee, subtenant transferee or transferee is reputablesubleasee for Landlord’s consent, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant which shall not be construed as a unreasonably withheld. Any assignee, transferee or subtenant shall not assign or transfer this Lease, either in whole or in part, or sublet the whole or any part of the Premises, without also having obtained the prior written consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant’s obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to Tenant, terminate this Lease. The leasehold estate under this Lease shall not, nor shall any interest therein, be assignable for any purpose by operation of law without the written consent of Landlord. As a condition to its consent, Landlord may require Tenant to pay all expenses in connection with the assignment, and Landlord may require Tenant’s assignee or transferee (or other assignees or transferees) to assume in writing all of the obligations under this Lease and for Tenant to remain liable to Landlord under the Lease. Nothwithstanding anything to the contrary in this Lease, Landlord may elect to terminate this Lease in the case of a sublease of more than 50% of the Leased Premises. Tenant may void Landlord’s election to terminate by withdrawing the requested consent within two (2) business days of Landlord’s election to terminate. Notwithstanding anything to the contrary in this Paragraph 13Lease, Tenant may assign or may, without Landlord’s prior written consent, sublet the Premises without or assign the prior written consent Lease to a subsidiary or affiliate of LandlordTenant (“Permitted Assignee”), to an entity which currently owns more than fifty percent (50%) provided the Permitted Assignee assumes in writing all of the voting stock of obligations under this Lease and for Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory remain liable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this the Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 3 contracts
Sources: Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.), Lease Agreement (Dermira, Inc.)
Assignment and Subletting. (a) 15.1 Tenant shall not (voluntarilynot, by operation of law directly or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofindirectly, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned assign this Lease or delayed any interest herein or sublease the Premises or any part thereof; or permit the use or occupancy of the Premises by any person other than Tenant. Tenant shall not, directly or indirectly, without the prior written consent of Landlord, pledge, mortgage or hypothecate this Lease or any interest herein. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord. For purposes of this Lease, any of the following transfers on a cumulative basis shall constitute an assignment of this Lease that requires the prior written consent of Landlord: if Tenant is a corporation, the transfer of more than forty-nine percent (49%) of the stock of the corporation; if Tenant is a partnership or a limited liability company, the transfer of more than forty-nine percent (49%) of the capital or profits or partnership or membership interests in the partnership or limited liability company; and will if Tenant is a trust, the transfer of more than forty-nine (49%) of the beneficial interest under the trust. Any of the foregoing acts without such prior written consent of Landlord shall be void and shall, at the option of Landlord, constitute a default that entitles Landlord to terminate this Lease. Notwithstanding the foregoing, a sale or transfer of the memberships, interests, shares, or stock of Tenant shall not be withheld deemed an assignment or subletting (1) if such sale or transfer occurs in connection with any bona fide financing or capitalization for the benefit of Tenant without a change in the majority of the executive senior management of Tenant and without a reduction in Tenant’s net worth, or (2) if such sale or transfer is in connection with the initial public offering of Tenant’s stock or, thereafter, through the “over-the-counter” market or any recognized national or international securities exchange.
15.2 If Tenant wishes to assign this Lease or sublease all or any part of the Premises, Tenant shall provide Landlord written notice identifying the intended assignee or subtenant by name and address and specifying all of the terms of the intended assignment or sublease, and a copy of all documentation pertaining to such assignment or sublease (except that Landlord shall have the right to require that Tenant and such assignee or subtenant execute ▇▇▇▇▇▇▇▇’s standard form of consent document). Tenant shall give Landlord such additional information as Landlord requests concerning the intended assignee or subtenant (including, without limitation, current financial statements) or the intended assignment or sublease. Without limiting or excluding other reasonable grounds for withholding Landlord’s consent to a proposed assignment or sublease, Landlord shall have the right to withhold consent if (a) the proposed assignee or subtenant or the use of the Premises to be made by the proposed assignee or subtenant is not consistent with the character and nature of other tenants and uses in the Project or is prohibited by this Lease or any laws, covenants, or restrictions applicable to the Project, (b) it is not demonstrated to the satisfaction of Landlord that the proposed assignee or subtenant has good business and moral character and reputation and is financially able to perform all of the obligations of Tenant under this Lease, (c) the assignment or subletting would increase the operating costs for the Project or the burden on the Project services, (d) the space will be used for a personnel or employment agency, an office or facility of any governmental or quasi-governmental agency or authority, or any use by or affiliation with a foreign government (including without limitation an embassy or consulate or similar office), (e) the proposed assignee or subtenant is a current tenant of the Project or a prospective tenant of the Project and a similar size and type space are available to such tenant on a direct basis from Landlord, or (f) the proposed assignee or subtenant is an entity or related to an entity with whom Landlord or any affiliate of Landlord has had adverse dealings.
15.3 Notwithstanding anything to the contrary in this Article 15, if ▇▇▇▇▇▇ wishes to assign this Lease or sublease all or any part of the Premises, Landlord shall have the right, by giving notice to Tenant within thirty (30) days after Tenant requests the consent of Landlord (i) in the event of an assignment of this Lease, to terminate this Lease effective as of the date such assignment would have become effective (and such termination date shall become the Expiration Date for purposes of this Lease), or (ii) in the event of a sublease (A) to sublet from Tenant any portion of the Premises proposed by Tenant to be sublet, for the term for which such portion is proposed to be sublet, but at the lesser of the proposed sublease rent or the same rent (including additional rent as provided for in sections 3.1(b) and (c) above) as Tenant is required to pay to Landlord under this Lease for the same space, computed on a pro rata square footage basis, and during the term of such sublease Tenant shall be released of its obligations under this Lease with regard to the subject space or (B) to terminate this Lease as it pertains to the portion of the Premises so proposed by Tenant to be sublet effective as of the date such sublease would have become effective (and such termination date shall become the Expiration Date for purposes of this Lease with respect to such portion of the Premises).
15.4 Tenant shall pay to Landlord, as Landlord’s cost of processing each proposed assignment or subletting, an amount equal to the sum of (i) Landlord’s reasonable attorneys’ and other professional fees, plus (ii) the sum of $750.00 for the cost of Landlord’s administrative, accounting and clerical time (collectively, “Processing Costs”), and the amount of all direct and indirect costs and expenses incurred by Landlord arising from the assignee or sublessee taking occupancy of the subject space (including, without limitation, costs of freight elevator operation for moving of furnishings and trade fixtures, security service, janitorial and cleaning service, and rubbish removal service). Notwithstanding anything to the contrary herein, Landlord shall not be required to process any request for ▇▇▇▇▇▇▇▇’s consent to an assignment or subletting until ▇▇▇▇▇▇ has paid to Landlord the amount of Landlord’s estimate of the Processing Costs and all other direct and indirect costs and expenses of Landlord and its agents arising from the assignee or subtenant taking occupancy.
15.5 No assignment, sublease, pledge, mortgage, hypothecation or other transfer, nor any consent by Landlord to any of the foregoing, shall release Tenant from any of Tenant’s obligations and liabilities under this Lease or alter the primary liability of Tenant to pay rent and to perform all other obligations to be performed by Tenant hereunder (and Landlord may proceed directly against Tenant without the necessity of exhausting any remedies against such assignee, subtenant or transferee is reputablesuccessor), has equal or better credit than shall be deemed to be a consent to any subsequent pledge, mortgage, hypothecation, assignment, sublease, or occupation or use by another person. Tenant hereby acknowledges and agrees, and any guarantor instrument by which an assignment or sublease is accomplished shall expressly provide: (a) that the assignee or subtenant will perform and observe all the agreements, covenants and conditions to be performed and observed by Tenant under this Lease as and when performance and observance is due after the effective date of the assignment or sublease, (b) that Landlord will have the right to enforce such agreements, covenants and conditions directly against such assignee or subtenant, (c) in the case of a sublease, the subtenant shall, at Landlord’s election, attom directly to Landlord in the event that this Lease is terminated for any reason, (d) in the case of an assignment, the assignee assumes all of Tenant’s obligations under this Lease arising on or after the date of the assignment, and (e) in the case of a sublease, the subtenant agrees to be and remain jointly and severally liable with Tenant for the payment of rent pertaining to the sublet space in the amount set forth in the sublease, and for the performance of all of the terms and provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted UseLease. Any assignment or subletting sublease without such consent (whether actual or deemed) an instrument containing the foregoing provisions shall be void, void and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance No assignment or sublease shall be valid and no assignee or subtenant shall take possession of Rent by Landlord from anyone other than Tenant shall not be construed as a the Premises or any part thereof until an executed duplicate original of such assignment or sublease (and any standard form of consent or waiver document required by Landlord) has been delivered to Landlord, nor as a release together with the written consent to such assignment or sublease of any guarantor of Tenant’s obligations hereunder, but the same if any, and certificates evidencing that such subtenant or assignee is carrying all insurance coverage required under this Lease has been provided to Landlord.
15.6 If Landlord consents in writing, then as condition to and in consideration for such consent, all “excess rent” (as hereinafter defined) derived from such assignment or sublease shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than divided and paid fifty percent (50%) of the voting stock of to Tenant or which Tenant owns greater than and fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide to Landlord with a copy of any proposed sublease or assignment that contains the name and address during each month of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlordterm. Landlord’s consent will not share of such excess rent shall be effective unless computed monthly and until shall be deemed to be, and shall be paid by Tenant delivers to Landlord an originalas, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinadditional rent. Tenant shall pay Landlord’s reasonable feesshare of such excess rent to Landlord immediately as and when such excess rent is receivable by Tenant. As used in this section 15.6, not “excess rent” shall mean the amount by which the total money and other economic consideration to exceed One Thousand Dollars be paid by the assignee or subtenant as a result of an assignment or sublease, whether denominated rent or otherwise, for any given month exceeds, in the aggregate, the total amount of rent which Tenant is obligated to pay to Landlord under this Lease for such month ($1,000.00prorated to reflect the rent allocable to the portion of the Premises subject to such assignment or sublease), incurred less the reasonable costs paid by ▇▇▇▇▇▇ for review brokers’ commissions and attorneys’ fees with respect to such sublease or assignment, which costs shall be amortized without interest over the term of such assignment or sublease. As a condition to Tenant recapturing its assignment or subletting costs as provided herein, Tenant shall provide to Landlord, within thirty (30) days of Landlord’s execution of ▇▇▇▇▇▇▇▇’s consent to the assignment or subletting, a detailed accounting of such costs and reasonable supporting documents, such as receipts and construction invoices.
15.7 Any sublease hereunder shall be subordinate and subject to the provisions of this Lease, and if this Lease shall be terminated during the term of any sublease, Landlord shall have the right to: (a) treat such sublease as canceled and repossess the entire Premises by any lawful means, or (b) require that such subtenant attorn to and recognize Landlord as its landlord under any such sublease. If Tenant shall be in default under this Lease, Landlord is hereby irrevocably authorized, as ▇▇▇▇▇▇’s agent and attorney-in-fact, to direct any subtenant to make all other materials submitted by Tenant payments under or in connection with a sublease directly to Landlord (which Landlord shall apply towards Tenant’s obligations under this Lease) until such default is cured. Such subtenant shall rely on any representation by Landlord that ▇▇▇▇▇▇ is in default hereunder, without any need for confirmation thereof by ▇▇▇▇▇▇.
15.8 Anything contained in this Article 15 to the request for contrary notwithstanding, but subject to sections 15.5, and 15.7 above, Tenant may assign this Lease or sublet the Premises or any portion thereof, without Landlord’s consent, whether to any partnership, corporation or other entity which controls, is controlled by, or is under common control with Tenant or Tenant’s parent (control being defined for such purposes as ownership of at least 50% of the equity interests in, and the power to direct the management of, the relevant entity), or to any partnership, corporation or other entity resulting from a merger or consolidation with Tenant or Tenant’s parent, or to any person or entity which acquires all or substantially all the assets of Tenant as a going concern (including by means of a purchase of all or substantially all of Tenant’s stock) (collectively, an “Affiliate”), provided that (a) Landlord receives at least ten (10) days’ prior written notice of the assignment or subletting, together with evidence that the requirements of this section 15.8 have been met, (b) the Affiliate’s net worth is not less than Tenant’s net worth as of the date of this Lease or as of the date immediately prior to the assignment or subletting (or series of transactions of which the same is a part), whichever is greater, (c) except in the case of an assignment where the assignor is dissolved as a matter of law following the series of transactions of which the assignment is a part (e.g. a merger), the Affiliate remains an Affiliate for the duration of the subletting or the balance of the term in the event of an assignment, (d) the Affiliate assumes (in the event of an assignment) in writing all of Tenant’s obligations under this Lease, and agrees (in the event of a sublease) that such subtenant will, at Landlord’s election, attorn directly to Landlord in the event that this Lease is terminated for any reason, (e) Landlord receives a fully executed copy of an assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantthe Affiliate, there will be deemed (f) in the case of an assignment by means of a purchase of all or substantially all of Tenant’s stock, the essential purpose of such assignment is to be transfer an active, ongoing business with substantial assets in addition to this Lease, and in the case of an assignment (by any means), or a sublease, the transaction is for legitimate business purposes unrelated to this Lease and the transaction is not a subterfuge by Tenant to avoid it obligations under this Lease or the restrictions on assignment and subletting contained herein, and (g) in the case of a sublease, the Affiliate executes and ▇▇▇▇▇▇ delivers to Landlord a fully executed counterpart of Landlord’s waiver and acknowledgement form for an Affiliate sublease.
15.9 Notwithstanding anything to the contrary contained in this Lease, during the first twelve months of the Lease Term, Tenant shall have the right, without Landlord’s consent (but with written notice to Landlord), to allow any person or company to occupy certain portions of the Premises (hereinafter “Permitted Occupants”) as long as (a) the space occupied by such parties is not separately demised from the balance of the Premises (i.e. separated from the balance of the space by a wall or other constructed device and having separate entrances to the common areas), (b) no profitmore than twenty percent (20%) of the rentable square footage of the Premises, in the aggregate, is so used at any one time, (c) the use of the space is not a use which materially increases (i) the operating costs for the Project, (ii) the burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Project, or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the Project being unreasonably compromised or reduced (for example, but not exclusively, as a school or training facility, an entertainment, sports or recreation facility, retail sales to the public, medical offices, a personnel or employment agency, or an embassy or consulate or similar office), (d) Tenant does not realize a profit with respect to the space so used, and (e) the term of such occupancy shall expire on or before the date that is twelve (12) full calendar months following the Commencement Date. Tenant shall deliver all documents pertaining to any be fully responsible for the conduct of such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of parties within the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning Premises and the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwillProject, and therefore, ▇▇▇▇▇▇’s indemnification obligations set forth in Articles 6 and 13 of this Lease shall be included in Tenant’s profits as described herein.apply with respect to the cond
Appears in 3 contracts
Sources: Office Lease (Livongo Health, Inc.), Office Lease (Livongo Health, Inc.), Office Lease (Livongo Health, Inc.)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against any assignment or subleasing is by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord by its acceptance hereof acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Arizona or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Inc)
Assignment and Subletting. (a) A. Except as set forth below, Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned, in each instance, either prior or subsequent to the Commencement Date, (voluntarily, by operation of law or otherwisei) assign, transfer, mortgage, pledge, hypothecate or encumber or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest thereinunder it, and shall not (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant’s interest herein by operation of law, (iii) sublet the Premises or any part thereof, or any right (iv) permit the use or privilege appurtenant thereto, or allow any other person (occupancy of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof, without first obtaining the written consent of Landlord, which consent will part thereof for any purpose not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provided for under Section 5 of this Lease at or by anyone other than the time Tenant and Tenant’s employees, provided, however, Tenant shall have the right to transfer and assign this Lease without Landlord’s consent to any parent, subsidiary or affiliated company of the subject transactionTenant, and has substantial experience in with Tenant remaining liable for the operation performance of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Rent Tenant under any bankruptcy, insolvency or reorganization proceedings, except as provided by law.
B. Without thereby limiting the generality of the foregoing provisions of this Section 36, Tenant expressly covenants and agrees not to enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of the Premises which provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied or utilized, and that any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. Notwithstanding the foregoing, Tenant may sublease or assign this Lease to one of its affiliates or subsidiaries without Landlord’s prior consent.
C. Consent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation use, occupancy, transfer or use by any other person encumbrance shall not operate to relieve Tenant from any covenant or obligation hereunder except to the extent, if any, expressly provided for in such consent, or be deemed to be a consent to or relieve Tenant from obtaining Landlord’s consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or use encumbrance by another personTenant or anyone claiming by, through or under Tenant. Notwithstanding anything Tenant shall pay all of Landlord’s reasonable costs, charges and expenses, including without limitation, reasonable attorney’s fees, incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by Tenant.
D. Tenant shall, by notice in writing, advise Landlord of its intention from, on and after a stated date (which shall not be less than forty-five (45) days after the date of the giving of Tenant’s notice to Landlord) to assign this Lease or sublet any part or all of the Premises for the balance or any part of the Term, and, in such event, Landlord shall have the right, to be exercised by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice, to terminate this Lease with respect to the contrary space described in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) Tenant’s notice as of the voting stock date stated in Tenant’s notice for the commencement of Tenant the proposed assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant sublease. Tenant’s notice shall provide Landlord with a copy of any proposed sublease or assignment that contains include the name and address of the proposed subtenant assignee or assigneesubtenant, the anticipated effective date a true and complete copy of the proposed assignment or sublease or assignmentand sufficient information as Landlord reasonably deems necessary to permit Landlord to determine the financial responsibility, the duration experience and character of the term proposed assignee or subtenant. If Tenant’s notice covers all of any the Premises and if Landlord exercises its right to terminate this Lease as to such space, then the Term of this Lease shall expire and end on the date stated in Tenant’s notice for the commencement of the proposed subleaseassignment or sublease as fully and completely as if that date had been the last day of the Term hereof. If, however, Tenant’s notice covers less than all of the Premises, and if Landlord exercises its right to terminate this Lease with respect to such space described in Tenant’s notice, then as of the amount date stated in the Base Rent and the Tenant’s Pro Rata Share as defined herein shall be adjusted on the basis of the number of rentable square feet retained by Tenant and this Lease as so amended, shall continue thereafter in full force and effect.
E. If Landlord, upon receiving Tenant’s said notice with respect to any such space, does not exercise its right to terminate as aforesaid, Landlord will not unreasonably withhold its consent to Tenant’s assignment of this Lease or subletting the space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requirescovered by its notice. Landlord may require an opportunity shall not be deemed to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s have unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease of part or assignment, it shall be considered reasonable for Landlord to consider all of the Premises if its consent is withheld because: (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assigneeis then in default hereunder, (ii) any history that the proposed subtenant notice of termination of this Lease or anyone has with the liquor licensing agencies termination of the City of Glendale and the State of Colorado, and Tenant’s possession shall have been given under Section 20 hereof; (iii) whether either the portion of the Premises which Tenant proposes to sublease, or the remaining portion of the Premises, or the means of ingress or egress to either the portion of the Premises which Tenant proposes to sublease or the remaining portion of the Premises, or the proposed use of the Premises after such sublease or assignment would create any nuisance portion thereof by the proposed assignee or subtenant will violate any federalvillage, city, state or local laws federal law, ordinance or involve Hazardous Materials.
regulation, including without limitation, any applicable building code or zoning ordinances; (civ) If the proposed use of the Premises by the proposed assignee or subtenant does not conform with the use set forth in Section 5 hereof or is not otherwise a reasonable use of the Premises; (v) in the reasonable judgment of Landlord consents the proposed assignee or subtenant is of a character or is engaged in a business which would be deleterious to a the reputation of the Building or Landlord, or the proposed assignee or subtenant is not sufficiently financially responsible or experienced to perform its obligations under the proposed assignment or sublease; or (vi) the proposed assignee or subtenant is a government (or subdivision or agency thereof) or an occupant of the Building; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its consent and shall not be deemed exclusive of any permitted reasons for reasonably withholding consent, whether similar or dissimilar to the foregoing examples. Tenant agrees that all advertising by Tenant or on Tenant’s behalf with respect to the assignment of this Lease or subletting of any part of the Premises must be approved in writing by Landlord prior to publication.
F. If Tenant, having first obtained Landlord’s consent to any assignment or sublease, or if Tenant, as debtor or debtor in possession, or a trustee in bankruptcy for Tenant pursuant to the Bankruptcy Code, 11 U.S.C. 101 et seq., as amended from time to time (the “Bankruptcy Code”), shall assign this Lease or sublet the Premises, or any part thereof, at a rental or for other consideration in excess of the Rent or prorata portion thereof due and payable by Tenant under this Lease, then Tenant shall pay to Landlord as additional rent any such excess rent or other consideration immediately upon receipt under any such assignment or, in the case of a sublease, (i) on the first date of each month during the term of any sublease, the form excess of all rent and other consideration due from the subtenant for such assignment month over the Rent then payable to Landlord pursuant to the provisions of this Lease for said month (or sublease if only a portion of the Premises is being sublet, the excess of all rent and other consideration due from the subtenant for such month over the portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said month which is allocable on a rentable square footage basis to the space sublet), and (ii) immediately upon receipt thereof, any other consideration realized by Tenant from such subletting; it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall assign this lease or sublet the Premises or any part thereof at a rental less than Rent provided for herein.
G. If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument reasonably satisfactory to Landlord and shall furnish to Landlord not later than fifteen (i15) incorporate this Lease in its entirety and be subject days prior to its terms, (ii) provide that the effective date of the assignment. If Tenant shall remain liable under this Leasesublease the Premises as permitted herein, Tenant shall obtain and furnish to Landlord, not later than fifteen (iii15) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn days prior to the Landlord. Landlord’s consent will not be effective unless date of such sublease and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay the written agreement of such subtenant to the effect that the subtenant will attorn to Landlord, at Landlord’s reasonable feesoption and written request, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in event this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to lease terminates before the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess expiration of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsublease.
Appears in 2 contracts
Sources: Office Lease (Paylocity Holding Corp), Office Lease (Paylocity Holding Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease assign all or any interest thereinportion of this Lease, and shall not nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent shall not be unreasonably withheld, conditioned or delayed. Partial occupancy of the voting stock Premises by a subsidiary of Tenant, a sister entity under common ownership and control as Tenant, an affiliate of Tenant with other than common ownership, or a successor entity resulting by virtue of Tenant’s merger with another entity or acquisition by another entity, shall not be deemed violative of the foregoing prohibition but any such related entity shall be subject to all of the terms of this Lease. Tenant stipulates that Landlord has a valid interest in both the financial condition and the proposed Building use of all proposed Lease assignees and subtenants. In the event Tenant should desire to assign all or any portion of this Lease, or sublet the Premises or any part thereof, Tenant shall give Landlord notice of such desire at least thirty (30) days in advance of the date on which Tenant owns greater than fifty percent desires to make such assignment or sublease, which notice shall contain the name of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant, the term, use, rental rate and other particulars of the proposed subletting or assignment, including, without limitation, evidence satisfactory to Landlord that the proposed subtenant or assignee is financially responsible (50%unless Tenant will not seek to be released from its obligations hereunder) of all classes of stock and will immediately occupy and thereafter use the Premises (or any sublet portion thereof) for the remainder of the Lease Term (or for the entire term of the sublease, if shorter). If all classes of partnership the criteria listed in the foregoing sentence equal or membership interest)exceed the same parameters of Tenant, and Landlord shall be reasonably satisfied that utilities and any other costs for which Landlord is responsible will not materially increase with the proposed subtenant or assignee and that the anticipated use of the Premises will not materially and detrimentally change, then Landlord’s consent is hereby stipulated. Any such notice shall contain language in bold type that failure by the Landlord to timely respond shall result in a deemed consent. Landlord shall then have a period of fifteen (15) business days following receipt of such notice within which to notify Tenant in writing that Landlord elects (1) to approve or disapprove Tenant’s proposed assignment or sublease stating any reasonable reason or condition for such disapproval. If Landlord shall fail to notify Tenant in writing of such election within said fifteen (15) business day period, Landlord shall be deemed to have consented to such assignment or sublease. All plans and specifications for any alterations which may be necessary to provide access shall be submitted by Tenant to Landlord for its prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Consent of Landlord to a particular assignment or sublease or other transaction shall not be deemed a consent to any other or subsequent transaction nor shall Landlord’s consent operate to release Tenant or any guarantor of this Lease from their obligations absent Landlord’s express written consent.
(b) Tenant Landlord shall provide Landlord with a copy of any proposed sublease have the right to transfer and assign, in whole or assignment that contains in part, all its rights and obligations hereunder and in the name Building and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleaseProperty referred to herein, and in such event and upon assumption by the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes transferee of Landlord’s consent obligations hereunder (any such transferee to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) have the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradobenefit of, and (iii) whether be subject to, the use provisions of the Premises after this Lease), no further liability or obligation shall thereafter accrue against Landlord hereunder provided only that Landlord shall also transfer any Security Deposit for this Lease to such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialstransferee.
(c) If Landlord consents Tenant is a corporation, then any merger, consolidation, dissolution, or liquidation, or any change in ownership or power to vote of fifty-one percent (51%) or more of its outstanding voting stock shall constitute an assignment for the purpose of this Lease. Notwithstanding the foregoing sentence, the merger of Tenant into a wholly owned subsidiary, effected solely to change the domicile of organization of Tenant, shall not constitute an assignment for the purpose of this Lease. If Tenant is a partnership, joint venture or other entity, then any liquidation, dissolution, or transfer of ownership of any interests totaling fifty-one percent (51%) or more of the total general partnership interests in such entity shall constitute an assignment for purposes of this Lease.
(d) Tenant agrees that it shall not place (or permit any employee or agent to place) any signs on or about the Property, nor conduct (and Tenant will take reasonable measures to not allow any employee or agent to conduct) any public advertising which includes any pictures, renderings, sketches or other representation of any kind of the Building (or a portion thereof) with respect to any proposed assignment or subleasesubletting of the Premises or any part thereof, the form of such assignment without Landlord’s prior written consent.
(e) Tenant shall not mortgage, pledge, hypothecate or sublease shall be satisfactory to Landlord and shall otherwise encumber (ior grant a security interest in) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessrights hereunder, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assigneewithout Landlord’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior written consent.
Appears in 2 contracts
Sources: Office Building Lease Agreement, Office Building Lease Agreement (Rackspace Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthe event Landlord consents to an assignment or sublease, Tenant shall provide detailed information regarding pay to Landlord a reasonable fee to cover Landlord's accounting costs plus any legal fees incurred by Landlord as a result of the proposed subtenant’s assignment or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressublease. Landlord may require an opportunity to meet and interview additional security deposit from the proposed assignee or subtenant or assignee as wella condition of its consent. For purposes of Landlord’s consent to a proposed sublease or assignmentAny consideration, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in excess of the City of Glendale Rent and the State of Colorado, other charges and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord sums due and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that payable by Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions paid to Tenant by any assignee of this LeaseLease for its assignment, (iv) provide or by any sublessee under or in connection with its sublease, or otherwise paid to Tenant by another party for assumption use and occupancy of the Demised Premises or any portion thereof, shall be promptly remitted by an assignee Tenant to Landlord as additional rent hereunder and Tenant shall have no right or claim thereto as against Landlord. No assignment of all the terms, covenants and conditions which this Lease requires Tenant consented to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not by Landlord shall be effective unless and until Tenant delivers to Landlord shall receive an original, duly executed original assignment or sublease, as the case may beand assumption agreement, in a form and substance satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes due performance of this Lease to be done and performed for the balance of the then remaining Lease Term of this Lease. No subletting of the Demised Premises, or any part thereof, shall be effective unless and until there shall have been delivered to Landlord an agreement, in form and substance satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease. Notwithstanding any provision to the contrary contained in Article 21 of this Lease Agreement Landlord's consent under Article 21 to an assignment or subletting of this Lease Agreement or any interest herein or in the Demised Premises shall not be unreasonably withheld or unduly delayed. Landlord and Tenant agree that Landlord may withhold its consent to any proposed assignment of this Lease Agreement or subletting of all or any portion of the Demised Premises, and such withholding of consent by Landlord will not be deemed to be unreasonable, if the proposed assignee or sublessee is not a reputable business entity or individual, is a governmental or quasi-governmental entity or is a party who would (or whose use would) detract from the character of the Building as set forth hereina first-class office building, such as, without limitation, a dental, medical or chiropractic office. Landlord may reasonably withhold consent to an assignment or subletting for reasons other than those enumerated immediately above. Sublessee or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall pay Landlord’s reasonable fees, not remain obligated for all liability to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with Landlord arising under this Lease during the request for Landlord’s consententire remaining Lease Term including any extensions thereof, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described authorized herein.
Appears in 2 contracts
Sources: Lease Agreement (TSW International Inc), Lease Agreement (Indus International)
Assignment and Subletting. (a) Tenant Section 13.1 Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises or Tenant’s personal property are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer in contravention of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time, during the Term desire to assign this Lease or any interest therein, and shall not sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Tenant shall give notice (a “Tenant’s Notice”) thereof to Landlord, which consent will Tenant’s Notice shall set forth: (a) with respect to an assignment of this Lease, the date Tenant desires the assignment to be effective and any consideration Tenant would receive under such assignment, (b) with respect to a sublet of all or a part of the Premises (i) the dates upon which Tenant desires the sublease term to commence and expire, (ii) the rental rate and other material business terms upon which Tenant would sublet such premises, and (iii) a description of the Premises showing the portion to be sublet, the effective or commencement date of which shall be not less than thirty (30) nor more than one hundred and eighty (180) days after the giving of such notice, (c) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (d) current financial information with respect to the proposed assignee or subtenant, including its most recent financial report, (e) a true and complete copy of the proposed assignment or sublease and any other agreements relating thereto, and (f) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be unreasonably withheldmade against Landlord by the proposed assignee or subtenant or by any brokers or other Persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. Tenant’s Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, conditioned at its option, (I) sublease such space (the “Leaseback Space”) from Tenant upon the terms and conditions set forth in Section 13.4, or delayed and will not be withheld terminate the Lease with respect to only the Leaseback Space, or (II) if the assignee, subtenant or transferee proposed transaction is reputable, has equal or better credit than Tenant and any guarantor (1) an assignment of this Lease at the time or (2) a subletting of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) or more of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address rentable area of the proposed subtenant or assigneePremises, the anticipated effective date of the proposed sublease or assignment, the duration of the term of terminate this Lease. Said options may be exercised by Landlord by notice given to Tenant at any proposed subleasetime within thirty (30) days after Tenant’s Notice has been given by Tenant to Landlord, and the amount of space any proposed subtenant will occupy. In additionduring such thirty-day period, Tenant shall provide detailed information regarding the proposed subtenant’s not assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this Lease with respect to all or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use portion of the Premises after such sublease or assignment would create any nuisance or violate any federalpursuant to Section 13.2 hereof, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, then this Lease shall end and expire on the form of date that such assignment or sublease shall be satisfactory was to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasecommence, as the case may be, and the Fixed Rent and Additional Rent due hereunder shall be paid and apportioned to such date. In such event, Landlord and Tenant, upon request of either party, shall enter into an amendment of this Lease ratifying and confirming such total or partial termination, and setting forth appropriate modifications, if any, to the terms and provisions hereof. Following such termination, Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant
Section 13.4 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the product of (i) the lesser of (A) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease, or (B) the rental rate per rentable square foot of rent and additional rent set forth in a form satisfactory Tenant’s Notice, multiplied by (ii) the number of rentable square feet of the Leaseback Space, and shall be for the same term as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained in Tenant’s Notice, and be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease, except such as are irrelevant or inapplicable, and except as expressly set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, and if the proposed sublease will result in all or substantially all of the Premises being sublet, grant Landlord or its designee the option to extend the term of such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord or its designee, may, at Landlord’s option, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease; provided, however, that such assignee or subtenant shall, at its sole cost and expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (ii) any assignment or sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (iii) Tenant shall, at Tenant’s sole cost and expense, at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (iv) Landlord may, at Tenant’s sole cost and expense, make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (v) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the subtenant to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
Section 13.5 (a) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord, except as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review any obligation which arises out of such assignment or sublease and all other materials submitted by Tenant in connection with results from the request for Landlord’s consent, whether negligence or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval willful misconduct of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt or any of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantagents, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, servants or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinemployees.
Appears in 2 contracts
Sources: Lease Agreement (Switch & Data, Inc.), Lease Agreement (Switch & Data, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilya) assign (whether directly or indirectly), in whole or in part. this Lease, or (b) allow this Lease to be assigned, in whole or in part, by operation of law or otherwise, or (c) assignmortgage Tenant’s interest in either or both of the Premises and this Lease or pledge its interest in this Lease, or (d) sublet the Premises, in whole or in part, without (in the case of any or all of (a) through (d) above) the prior written consent of Landlord (and Landlord’s lender, if applicable), which consent shall not be unreasonably withheld or delayed. In making its determination to provide or withhold its consent, it shall be reasonable for Landlord to take into consideration both the business experience and the financial condition of the surviving entity that shall constitute its tenant after the occurrence of any of (a) through (d) above, and Landlord may impose conditions precedent to the issuance of its consent (e.g. delivery of a guarantee or other collateral, whether in the form of a security deposit or otherwise). Tenant shall not require Landlord’s permission and shall at all times have the right to assign this lease to an entity in which Tenant has a 50% or more equity interest, or to a subsidiary where 50% or more of the outstanding stock, membership or partnership interest is owned by Tenant, or to an affiliate (any entity which controls, or is controlled by, or under common control with Tenant), or to a related entity (any entity in which Tenant or its subsidiary or affiliate – 7 – has at least 25% ownership interest), collectively a “Permitted Transfer”, provided however, that Tenant is not in default under this Lease. In no event shall any assignment or sublease ever release Tenant or any guarantor from any obligation or liability hereunder; and in the case of any assignment, Landlord shall retain all rights with respect to the Security. Any purported assignment, mortgage, transfer, mortgagepledge or sublease, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlordpermitted herein, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises made without the prior written consent of Landlord (and Landlord’s lender, if applicable) shall be absolutely null and void. No assignment of this Lease shall be effective and valid unless and until the assignee executes and delivers to Landlord (and Landlord’s lender. if applicable) any and all documentation reasonably required by Landlord (and Landlord’s lender, if applicable) in order to evidence assignee’s assumption of all obligations of Tenant hereunder. Regardless of whether or not an entity which currently owns more assignee or sublessee executes and delivers any documentation to Landlord pursuant to the preceding sentence, any assignee or sublessee shall be deemed to have automatically attorned to Landlord in the event of any termination of this Lease. If this Lease is assigned, or if the Premises (or any part thereof) are sublet or used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord or Agent may (without prejudice to, or waiver of Landlord’s rights), collect Rent from the assignee, subtenant or occupant. In the event of an assignment of this Lease and the payment of consideration from the assignee to the Tenant in connection therewith, fifty percent (50%) of such consideration shall be paid to Landlord. With respect to the voting stock allocable portion of the Premises sublet, in the event that the total rent and any other considerations received under any sublease by Tenant or which Tenant owns is greater than (on a pro rata and proportionate basis) the total Rent required to be paid, from time to time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of all classes such excess as received from any subtenant and such amount shall be deemed a component of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy the Additional Rent. In the event of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form and regardless of whether such assignment or sublease shall be satisfactory occurs pursuant to Landlord and shall this Section 8, the Guaranty (ias hereinafter defined) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms in full force and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to performeffect, and (v) include a requirement that any subtenant attorn to the Landlord. LandlordGuarantor’s consent will liability thereunder shall not be effective unless and until Tenant delivers to Landlord an originaldiminished, duly executed assignment released or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinmodified.
Appears in 2 contracts
Sources: Industrial Building Lease (ArcherDX, Inc.), Industrial Building Lease (ArcherDX, Inc.)
Assignment and Subletting. (a) Tenant Except as otherwise expressly provided herein, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet (voluntarilynor underlet), nor suffer, nor permit the Premises or any part thereof to be used or occupied by others (whether for desk space, mailing privileges or otherwise), without the prior written consent of Landlord in each instance as provided in this Article 14. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, or if this Lease or the Premises are encumbered (whether by operation of law or otherwise) assignwithout Landlord’s consent, transferthen Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to Fixed Rent and Additional Rent, but no assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of the provisions hereof, the acceptance by Landlord of the assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant from the further performance by Tenant of its obligations under this Lease, and Tenant shall remain fully liable therefor. The consent by Landlord to any assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance which shall not be unreasonably withheld or delayed; provided that no consent of Landlord shall be required with respect to a further sublet or an assignment of such sublease to an Affiliate of a permitted subtenant or to an assignment of such sublease to any party that buys substantially all of the stock or assets of such permitted subtenant. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber this Lease or any interest therein, and shall not sublet transfer in contravention of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 14 shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Landlord acknowledges that the collocation of communications equipment not owned by Tenant at the Premises shall provide not constitute an assignment or sublease requiring the consent of Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as wellhereunder. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions “colocation” means the installation by Tenant’s customers or its Affiliates, suppliers or business partners of this Lease, (iv) provide for assumption by an assignee telecommunications equipment in Tenant’s facilities therefor or employees or contractors of all such parties being located in the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may bePremises, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer ordinary course of Tenant’s or its Affiliates’ business, trade namefor which such parties pay fees based upon access to such facilities, inventory, as distinct from the renting of floor area. In no event shall any colocation arrangement entered into by Tenant entail the construction of a separate entrance to the Premises from the Building common corridor for any party thereto other than Tenant or goodwill: but any amount attributed to lease assignment on any document concerning employees or contractors of such parties being located in the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Emdeon Inc.), Lease Agreement (Emdeon Inc.)
Assignment and Subletting. (a) A. Tenant shall not (voluntarilynot, by operation of law directly or otherwise) assignindirectly, transfer, mortgage, pledge, hypothecate or encumber have the right to assign this Lease or any interest therein, and shall not to sublet the Premises whole or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. Consent to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall not be satisfactory deemed a waiver of the right of Landlord to Landlord approve or disapprove a further assignment or subletting. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and shall (i) incorporate this Lease in fully responsible and liable for the payment of the rent herein specified and for compliance with all of its entirety and be subject to its other obligations under the terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms provisions and conditions covenants of this Lease, (iv) provide for assumption by . Upon the occurrence of an assignee “event of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasedefault”, as hereinafter defined, if the case may bePremises or any part thereof are then assigned or sublet, Landlord, in a form satisfactory addition to Landlordany other remedies herein provided, as set forth herein. or provided by law, may at its option collect directly from such assignee or subtenant all rents becoming due to Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of under such assignment or sublease and all apply such rent against any sums due to Landlord from Tenant hereunder, and no such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant’s obligations hereunder. For purposes of this Paragraph 14, each of the following events shall be deemed an assignment:
(i) if Tenant is a partnership, a dissolution of the partnership or a change in ownership, legal or beneficial, of 50% or more of the partnership interests, whether by withdrawal or admission, voluntary or by operation of law; Lease Agreement 5 ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇▇) if Tenant is a corporation, the dissolution, consolidation or merger of Tenant or the sale or transfer of more than 50% of the voting shares of Tenant;
(iii) distribution or sale of over 50% of the value of Tenant’s assets (net of undistributed consideration received); or
(iv) any other materials submitted by change of effective control of Tenant. Notwithstanding (ii) & (iii) the above, Tenant shall have the right to assign this Lease in connection with the request for event of sale or transfer of more than 50% of the voting shares or assets of Tenant without Landlord’s consent, whether provided however, Tenant must provide Landlord written notice of its election to assign this Lease and execute those reasonable instruments recognizing such transfer. In the event of assignment, Tenant shall not be released from its obligations and shall remain liable for all obligations of the Lease under the Demised Term including any Renewal Options as provided for in Section 32.
B. In the event that Tenant assigns this Lease or not sublets the Premises or any part thereof, as permitted herein, and at any time receives rent and/or other consideration which exceeds that which Tenant would at that time be obligated to pay Landlord, Tenant shall pay to Landlord 50% of the gross excess in such rent as such rent is received by Tenant and 50% of any other consideration received by Tenant from such assignee or subtenant. In addition, should Landlord agree to an assignment or sublease agreement, Tenant will pay to Landlord on demand a sum equal to all Landlord’s costs, including reasonable attorney’s fees, incurred in connection with such assignment or sublease transfer not to exceed $2,500.00. If an assignment or subletting is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it Tenant shall be entitled to the receipt of one hundred percent (100%) of deduct from any profit derived by Tenant as a result of excess proceeds described in this subparagraph 14.B. its reasonable expenses incurred in connection with such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, assignment or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Agreement (Clearside Biomedical, Inc.), Lease Agreement (Clearside Biomedical, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, Landlord (which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assigneedelayed), subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time of the subject transaction, and has substantial experience or any interest herein or in the operation of the Permitted Use. Any assignment Demised Premises, or subletting without such consent (whether actual mortgage, pledge, encumber, hypothecate or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent grant any license or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation concession or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign otherwise transfer or sublet the Demised Premises without or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent by Landlord to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party, (i) if the proposed assignee or subtenant is a party whose use would detract from the character of the Building as a first-class building, such as, without limitation, a dental, medical or chiropractic office or a governmental office, (ii) if the proposed assignment or subletting would be to a governmental subdivision or agency or any person or entity who enjoys diplomatic or sovereign immunity, (iii) for the first thirty-six (36) months after the Delivery Date, if such proposed assignee or subtenant is an existing tenant of the Building, unless Landlord was not able to accommodate the space need of the proposed assignee or sublessee, or (iv) if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein.
(b) As a condition to considering any request for consent to an entity which currently owns more than fifty percent assignment or sublease, Tenant shall submit a written request (50%"Request to Assign") to Landlord at least ten (10) business days in advance of the voting stock of Tenant or date on which Tenant owns greater than desires to make such an assignment or sublease. Tenant's Request to Assign shall specify all of the terms of said proposed sublease or assignment, including the proposed effective date thereof, as well as the name and address of each proposed subtenant or assignee. Landlord may require Tenant to obtain and submit current financial statements of any proposed subtenant or assignee (including, without limitation, current financial statements of any prospective guarantor). Landlord shall then have a period of ten (10) business days following receipt of Tenant's Request to Assign within which to notify Tenant in writing whether Landlord elects to: (i) permit Tenant to assign this Lease or sublet such space for the duration specified by Tenant in its notice; or (ii) reject the proposed assignment or sublease. If Landlord fails to notify Tenant in writing of its election within the ten (10) business day period, Landlord shall be deemed to have elected option (ii) above. In the event Landlord consents to an assignment or sublease, Tenant shall pay to Landlord a fee (not to exceed $2,500.00 per occurrence or request) to cover Landlord's accounting costs and legal fees incurred by Landlord as a result of the assignment or sublease. No assignment of this Lease consented to by Landlord shall be effective unless and until Landlord shall receive an original assignment and assumption agreement, in form and substance satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes due performance of this Lease to be done and performed for the balance of the then remaining Lease Term of this Lease. Except for subleases under Article 21(d) herein, no subletting of the Demised Premises, or any part thereof, shall be effective unless and until there shall have been delivered to Landlord an agreement, in form and substance satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease.
(c) In an assignment or sublease is consented to by Landlord under this Article, Tenant and Landlord agree that fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Net Profit actually received by Tenant shall provide Landlord with a copy of any proposed from such sublease or assignment that contains shall be paid by Tenant to Landlord as an additional Rent hereunder as and when received by Tenant. For purposes hereof, the name and address term "Net Profit" shall mean the gross revenue received from the assignee or sublessee, less (i) the Rent paid to Landlord by Tenant with respect to the subleased space during the period of the proposed subtenant sublease term or assignee, attributable to the anticipated period from and after the effective date of the proposed sublease assignment; (ii) the Rent paid to Landlord by Tenant with respect to the subleased space or assignment, the duration space subject to such assignment during the period between the date Tenant ceased all business operations in such space and the commencement of the sublease term or the effective date of the assignment; (iii) any proposed subleaseimprovement allowance or other economic concession (planning allowance, and moving expenses, etc.) actually paid by Tenant to the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant sublessee or assignee, (iiiv) any history that the proposed subtenant reasonable brokerage commissions or anyone has attorney's fees actually paid in connection with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment; (v) lease takeover payments and reasonable costs of advertising the space for sublease or assignment would create any nuisance actually paid by Tenant; (vi) the unamortized cost of initial and subsequent improvements to the Demised Premises made by Tenant at Tenant's expense (and without reimbursement from the Improvement Allowance or violate any federalotherwise). When a portion of the Demised Premises is sublet, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or in calculating the Net Profit from such sublease, the form cost of such assignment or sublease Tenant attributable to the sublet space but attributable to some larger portion of the Demised Premises shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions prorated on the basis of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinRentable Floor Area. Tenant shall pay Landlord’s reasonable fees, not be obligated to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment take collection or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether enforcement action against any subtenant or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (Premiere Global Services, Inc.), Lease Agreement (Premiere Global Services, Inc.)
Assignment and Subletting. (a) Subject to the other provisions hereof, Tenant shall not, without the prior written consent of Landlord, which consent shall not (voluntarilybe unreasonably withheld or delayed by Landlord, by operation of law transfer or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest thereinherein, and shall not sublet the Premises or any part thereof, or permit the use of the Premises by any right or privilege appurtenant theretoparty other than Tenant. Subject to the other provisions hereof, or allow this Lease shall not, nor shall any other person (interest herein, be assignable as to the employees, agents, servants and invitees interest of Tenant excepted) to occupy or use by operation of law without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Usedelayed. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent hypothecate or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation encumber this Lease or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises interest herein without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) consent may be granted or denied in Landlord's reasonable discretion. Any of the voting stock foregoing acts without such consent shall be void and shall at the option of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Landlord, terminate this Lease.
(b) Tenant shall provide Landlord with a copy of Notwithstanding any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date provisions of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionthis Section 18, Tenant shall provide detailed information regarding have the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider right (i) to assign the relative financial strengthPremises or sublet the Premises or any portion thereof to an Affiliate (as defined below) of Tenant, business reputation and operational/management experience (ii) to sublet any portion of the Premises or permit the use or occupancy of the Premises, either temporarily or long term, but in no event in excess of 10,000 square feet in the aggregate at any one time, to a supplier of services to Tenant (e.g. data processing, photocopy, messenger, travel, communications, facilities management, accounting, etc.), Tenant's consultants or Tenant's contractors (the transfers described in (i) and (ii) above are referred to as "Permitted Transfers" and the proposed subtenant or assigneetransferees described in (i) and (ii) above are referred to as "Permitted Transferees"). "Affiliate" shall mean (i)the National Broadcasting Company ("NBC"), (ii) any history that corporation in which or with which Tenant is merged or consolidated in accordance with applicable statutory provisions for merger or consolidation of corporations, so long as the proposed subtenant or anyone has with the liquor licensing agencies liabilities of the City of Glendale and corporations participating in such merger or consolidation are assumed by the State of Coloradocorporation surviving such merger or created by such consolidation, and (iii) whether to any corporation or other entity acquiring this Lease and all or substantially all of Tenant's assets, or (iv) to any corporation or other entity which purchases all of the stock of Tenant, provided that Landlord has approved in writing the financial condition of any such entity described in clauses (i), (ii), (iii) and (iv) pursuant to Landlord's reasonable discretion, and any such entity has assumed all obligations of Tenant hereunder pursuant to an assumption agreement acceptable to Landlord; provided that, Landlord shall be deemed to have approved the financial condition under (iv) above for NBC and that company resulting from the merger transaction described in the S-4 Registration document filed July 12, 1999 by Tenant. Tenant shall provide written notice to Landlord of any Permitted Transfers and the full name of any Permitted Transferee using, occupying, subletting or taking by assignment the Premises. The use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be by each Permitted Transferee is subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this the Lease, (iv) provide for assumption by an assignee . No subletting or assignment to a Permitted Transferee shall release Tenant of all the terms, covenants and conditions which Tenant's obligations under this Lease requires or alter the primary liability of Tenant to perform, pay the rental and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and perform all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required obligations to be paid performed by Tenant hereunder. In the absence The acceptance of any such agreement between Tenant and its subtenant, there will rental by Landlord from a Permitted Transferee shall not be deemed to be a waiver by Landlord of any provision hereof and Landlord has no profitobligation to accept any rental from a Permitted Transferee. Tenant shall deliver all documents pertaining to In the event of default by any such subletting to Landlord upon Landlord’s demand. Such profit shall not include Permitted Transferee in the performance of any lump-sum payment made to Tenant from its subtenant in consideration of the transfer terms hereof, Landlord may proceed directly against Tenant without the necessity of Tenant’s businessexhausting remedies against such assignee, trade name, inventory, sublessee or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor.
Appears in 2 contracts
Sources: Office Lease (NBC Internet Inc), Office Lease (Xoom Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate encumber or encumber transfer its interest in this Lease or any interest therein, and shall not sublet in the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, or any portion thereof, without first obtaining the Landlord's prior written consent of Landlordconsent, which consent will Landlord shall not unreasonably withhold or delay. Any assignment, encumbrance or sublease without Landlord's prior written consent shall be unreasonably withheldvoidable at Landlord's election and shall constitute a default.
(b) For purposes hereof, conditioned if Tenant is a corporation (other than a publicly-held corporation), partnership or delayed and will not other entity, any transfer, assignment, encumbrance or hypothecation of forty-nine percent (49%) or more (individually or in the aggregate) of any stock or other ownership interest in such entity, and/or any transfer, assignment, hypothecation or encumbrance of any controlling ownership or voting interest in such entity, shall be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor deemed an assignment of this Lease at the time and shall be subject to all of the restrictions and provisions contained in this Paragraph 26; provided, however, no sale of all of Tenant's stock reasonably approved by Landlordshall be subject transactionto the provisions of this Paragraph 26. No consent to an assignment, encumbrance or sublease shall constitute a further waiver of the provisions of this Paragraph 26.
(c) In the event Tenant desires to assign, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least thirty days prior to the date when Tenant desires the assignment or sublease to be effective (the "Assignment Date"), Tenant shall give Landlord a notice (the "Assignment Notice"), which shall set forth the name, address and business of the proposed assignee or sublessee, information (including references) concerning the character, ownership, and has substantial experience in the operation financial condition of the Permitted Use. Any proposed assignee or sublessee, the Assignment Date, any ownership or commercial relationship between Tenant and the proposed assignee or sublessee, and the consideration and all, other material terms and conditions of the proposed assignment or subletting without sublease, all in such consent (whether actual or deemed) detail as Landlord shall be voidreasonably require. If Landlord reasonably requests additional detail, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Assignment Notice shall not be deemed to be a have been received until Landlord receives such additional detail, and Landlord may withhold consent to any subsequent assignment or sublease until such information is provided to it.
(d) Within thirty (30) days of Landlord's receipt of such Assignment Notice, and additional information requested by Landlord concerning the proposed assignee's or sublessee's financial responsibility, Landlord shall elect to either consent to such proposed assignment, sublettingencumbrance or sublease or refuse such consent, occupation which refusal shall be on reasonable grounds. In addition, a condition to Landlord's consent to any assignment, transfer or hypothecation of this Lease shall be the delivery to Landlord of a true copy of the fully executed instrument of assignment, transfer or hypothecation, and the delivery to Landlord of an agreement executed by the assignee in form and substance satisfactory to Landlord and expressly enforceable by Landlord, whereby the assignee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant hereunder. As a condition to Landlord's consent to any sublease, such sublease shall provide that it is subject and subordinate to this Lease and to all mortgages; that Landlord may enforce the provisions the sublease, including collection of rent; that in the event of termination of this Lease for any reason, including without limitation a voluntary surrender by tenant, or in the event of any reentry or repossession of the Premises by Landlord, Landlord may, at its option, either (i) terminate the sublease or (ii) take over all of the right, title and interest of Tenant, as sublessor, under such sublease, in which case such sublessee shall attorn to Landlord, but that nevertheless Landlord shall not (1) be liable for any previous act or omission of Tenant under such sublease, (2) be subject to any defense or offset previously accrued in favor of the sublessee against Tenant, or (3) be bound by any previous modification of any sublease made without Landlord's written consent, or by any previous prepayment by sublessee of more than one month's rent.
(e) Landlord shall be deemed reasonable in withholding its consent based upon any of the following factors: (i) the financial net worth of the proposed assignee or sublessee is not equal to or greater than Tenant's financial net worth as of the date of this Lease as increased by the increase in the CPI, if any, between the date of this Lease and the date of the assignment or sublease; (ii) the intended use of the Premises by another person. Notwithstanding anything the proposed assignee or sublessee is incompatible with other uses in the Building; (iii) the intended use of the Premises by the proposed assignee or sublessee will require more than insignificant alteration of the Premises; or (iv) the intended use of the Premises by the proposed assignee or sublessee will constitute a violation of this Lease or any governmental law, rule, ordinance or regulation governing the Premises or the Building or would involve the storage, use or keeping of Hazardous Materials in, on or about the Premises, the Building, the Parking Facilities, the Common Areas or any other portion of the Development.
(f) In the event that Landlord shall consent to an assignment or sublease under the contrary in provisions of this Paragraph 1326, Tenant may assign or sublet the Premises without the prior written shall pay Landlord's processing costs and attorneys' fees incurred in giving such consent. If Landlord shall consent to any assignment of this Lease, Tenant shall pay to Landlord, as additional rent, fifty percent (50%) of all sums and other consideration payable to an entity which currently owns more than and for the benefit of Tenant by the assignee on account of the assignment ("Assignment Transfer profits"), as and when such sums and other consideration are due and payable by the assignee to or for the benefit of Tenant (or, if Landlord so requires, and without any release of Tenant's liability for the same, Tenant shall instruct the assignee to pay such sums and other consideration directly to Landlord). If for any proposed sublease Tenant receives rent or other consideration, either initially or over the Term of the sublease, in excess of the rent called for hereunder or, in case of the sublease of a portion of the Premises, in excess of such rent fairly allocable to such portion, after appropriate adjustments to assure that all other payments called for hereunder are taken into account, Tenant shall pay to Landlord as additional rent hereunder fifty percent (50%) of the voting stock excess of each such payment of rent or other consideration received by Tenant (the "Sublease Transfer Profits") promptly after its receipt. Notwithstanding any contrary provision of this Subparagraph 26(f), in determining Assignment Transfer Profits or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionSublease Transfer Profits, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived deduct advertising costs, brokerage commissions, improvement allowances and/or retrofit costs, legal fees, and space planning fees incurred by Tenant as a result in assigning the Lease or subleasing the Premises. Landlord's waiver or consent to any assignment or subletting shall not relieve Tenant or any assignee or sublessee from any obligation under this Lease whether or not accrued. Occupancy of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess all or part of the Rent required to be paid Premises by parent or subsidiary companies of Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will shall not be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, an assignment or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of tile value of the assets of Tenant, shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter. Regardless of Landlord's consent, no subletting or assignment shall release Tenant or Tenant's obligation to pay the rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Hit Entertainment Inc), Commercial Lease (Hit Entertainment Inc)
Assignment and Subletting. Provided the terms and conditions set forth in clauses (a) through (e) below have been met and Tenant notifies Landlord in writing of its intention to do so at least ten (10) days prior to the date in question Tenant shall not (voluntarilyhave the right without obtaining Landlord's consent, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber to assign this Lease or sublet all or part of the Demised Premises to any interest thereinaffiliate, parent, subsidiary, divisional entity, partner, joint venture entity or related business entity of Tenant, or to any entity arising by virtue of merger, consolidation or other business combination with Tenant or Tenant's parent entity, or to any purchaser of all or substantially all of Tenant's stock or assets, or to any entity under the ownership or control of Tenant's parent entity or holding entity (individually, a "Related Entity" and shall not sublet collectively, "Related Entities"). During the Premises or any part thereofterm of this Lease, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion renewal thereof, the Tenant may not assign or sublet all or a portion of the Demised Premises to any parties not constituting a Related Entity without first obtaining the express written consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned withheld or delayed and will upon the further express terms and conditions:
(a) That the Tenant shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and in material default of any guarantor provision of this Lease at Lease;
(b) That the time Tenant shall demonstrate to the reasonable satisfaction of the subject transaction, and has substantial experience in Landlord:
(i) The office use by the operation proposed lessee of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Demised Premises shall be voidsimilar to that of the Tenant.
(ii) The use by the proposed lessee shall not be substantially more intense (by virtue of density of occupancy, and shallapplicable fire codes, at hours of use, or otherwise) than that of the option of Landlord, constitute a default Tenant;
(c) That the Tenant shall remain fully liable under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than ; and
(d) That the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but pay over to the same Landlord and the Landlord shall be taken entitled to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent receive Fifty Percent (50%) of all classes of stock rentals, escalations and payments due and payable to Tenant from the proposed lessee/assignee in connection with the sublease (or all classes assignment of partnership or membership interest)the Lease) of the Demised Premises which are in excess of the rentals, escalations and payments paid by the Tenant under this Lease and after Tenant deducts its reasonable brokerage, advertising and attorneys' fees, as well as any fit-up expenditures and free rent concessions.
(be) That in the case of an assignment of this Lease (which assignment shall not release Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits obligations under this Lease), Tenant shall provide detailed information regarding have delivered a written assumption by the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview assignee of the proposed subtenant or assignee as wellobligations of Tenant under this Lease. For purposes of hereof, Landlord shall grant or withhold its consent in writing (with specific reasons for withholding its consent), within thirty (30) days after receiving Tenant's request therefor. Landlord’s 's failure to so respond within said thirty (30) day period shall be deemed a consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a said proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that . Upon any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or permitted sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s upon Tenant's request and at Tenant's sole cost and expense, agrees to enter into a reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection nondisturbance agreement with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement (MTM Technologies, Inc.), Lease Agreement (MTM Technologies, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City and County of Glendale Denver and the State of Colorado, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease Agreement, Lease (VCG Holding Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation assign or transfer all or any portion of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber its interest in this Lease or any interest therein, and shall not sublet in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Leased Premises, nor sublet all or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionLeased Premises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord not to be unreasonably withheld or delayed. Any assignment, sublease or other such transfer without Landlord's prior written consent shall be voidable, and, at Landlord's election, shall constitute a Default of Tenant hereunder. Consent by Landlord to an entity which currently owns one or more than fifty assignments or sublettings shall not operate as a waiver of Landlord's rights with respect to any subsequent assignment or subletting. If Tenant is a partnership, a withdrawal or change (voluntary, involuntary, or by operation of law) of any partner owning twenty percent (5020%) or more of the partnership, or the dissolution or liquidation of the partnership, shall be deemed an assignment of this Lease. If Tenant is a corporation, any dissolution, merger, consolidation, or other reorganization of Tenant, or the sale or other transfer of the controlling percentage of the capital stock of Tenant, or the sale of fifty-one percent (51%) of the voting stock value of the assets of Tenant, shall be deemed an assignment of this Lease. If Tenant consists of more than one person, a purported assignment (voluntary, involuntary, or which by operation of law) from any of such persons to any other person or entity shall be deemed an assignment of this Lease. Notwithstanding any assignment or subletting, Tenant owns greater than fifty percent (50%) and any guarantor of Tenant's obligations under this Lease shall at all times remain fully liable for the payment of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name Rent and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable obligations under this Lease, (iii) provide that subtenant will comply with all terms and conditions of . Landlord shall have the right at any time to assign this Lease, (iv) provide for assumption by an assignee of all the termsin whole or in part, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthird party.
Appears in 2 contracts
Sources: Office Lease Agreement (Bay National Corp), Office Lease Agreement (Bay National Corp)
Assignment and Subletting. (a) 10.1 Neither this Lease nor any part hereof, nor the interest of Tenant shall not (voluntarilyin any sublease or the rentals thereunder shall, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant, Tenant’s legal representatives or successors in interest, and neither the Premises, nor any part thereof, nor any of Tenant’s Property shall be encumbered in any manner by reason of any act or omission on the part of Tenant or anyone claiming under or through Tenant, or shall be sublet or be used, occupied or utilized by anyone other than Tenant, without the prior consent of Landlord. A transfer of more than 50% in interest of Tenant (whether stock, partnership interest or otherwise), whether in a single transaction or a series of related or unrelated transactions, shall be deemed an assignment of this Lease. Any assignment, sublease, mortgage, pledge, hypothecate encumbrance or encumber transfer by Tenant in contravention of this Article X shall be void. If this Lease be assigned, or any interest therein, and shall not sublet if the Premises or any part thereofthereof be sublet or occupied by anybody other than Tenant, Landlord may, after the occurrence of an Event of Default, collect rent from the assignee. subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees an acceptance of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputableoccupant as tenant under this Lease, has equal or better credit than a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent of Landlord to any further assignment or subletting.
10.2 No assignment or subletting consented to by Landlord shall be valid unless within 10 days after the execution thereof, Tenant shall deliver to Landlord (a) a duplicate original sublease, duly executed by Tenant and any guarantor the subtenant, or instrument of assignment duly executed by Tenant, as the case may be, in form and substance satisfactory to Landlord and (b) in the case of an assignment, an instrument in form and substance satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms. covenants and conditions of this Lease on Tenant’s part to be observed and performed.
10.3 Notwithstanding anything contained in Section 10.1, in the event that, at any time or from time to time prior to or during the time Term, Tenant desires to sublet all or any part of the subject transaction, and has substantial experience Premises or assign its interest in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than , Tenant shall not be construed as a consent or waiver by submit to Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).:
(ba) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains in writing, the name and address of the proposed subtenant or assignee, a reasonably detailed statement of the anticipated effective proposed subtenant’s or assignee’s business, reasonably detailed character references for the proposed subtenant or assignee, reasonably detailed financial references for the proposed subtenant or assignee (including certified balance sheet and income statements for the proposed subtenant or assignee; in the case of the balance sheet, dated not more than 60 days prior to the date of its submission), and such other information with respect to the character, business and financial condition of the proposed subtenant or assignee as Landlord or any Superior Lessor or Superior Mortgagee, whose consent to such subletting or assignment is required, may request; and
(b) a copy of the proposed sublease or assignment, the duration of the term of any proposed subleaseand, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of within thirty (30) days after Landlord’s consent to consent, if given, a fully executed copy of such sublease or assignment containing the same terms and conditions as the proposed sublease or assignment.
10.4 Tenant agrees to pay Landlord all reasonable costs incurred by Landlord in connection with any subletting or assignment, it shall be considered reasonable for Landlord including, without limitation, the costs of making investigations as to consider (i) the relative financial strength, business reputation and operational/management experience acceptability of Tenant and the a proposed subtenant or assignee, and legal costs incurred in connection with any requested consent, not to exceed $2,500.
(iia) any history that Notwithstanding anything to the proposed subtenant contrary contained in this Lease, (A) an assignment or anyone has with the liquor licensing agencies subletting of the City of Glendale and the State of Colorado, and (iii) whether the use all or a portion of the Premises after to an affiliate of Tenant (an entity which is controlled by, controls, or is under common control with, Tenant as of the date of this Lease), (B) a sale of corporate shares of capital stock in Tenant in connection with an initial public offering of Tenant’s stock on a nationally-recognized stock exchange, (C) an assignment of the Lease to an entity which acquires all or substantially all of the stock or assets of Tenant, or (D) an assignment of the Lease to an entity which is the resulting entity of a merger or consolidation of Tenant during the Lease Term, shall not be deemed a Transfer requiring Landlord’s consent under this Article X (any such sublease assignee or assignment would create sublessee described in items (A) through (D) of this Section 10.5(a) hereinafter referred to as a “Permitted Transferee”), provided that (i) Tenant notifies Landlord at least ten (10) days prior to the effective date of any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to (or promptly following the same if prior notice is not permissible under applicable securities or other law) and promptly supplies Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termswith any documents or information reasonably requested by Landlord regarding such transfer or transferee as set forth above, (ii) provide that Tenant shall remain liable is not in default, beyond any applicable notice and cure period, and such assignment or sublease is not, in Landlord’s determination, a subterfuge by Tenant to avoid its obligations under this Lease, (iii) provide that subtenant will comply such Permitted Transferee shall be of a character and reputation consistent with all terms and conditions the quality of this Leasethe Building, (iv) provide for assumption by such Permitted Transferee shall have a tangible net worth (not including goodwill as an assignee asset) computed in accordance with generally accepted accounting principles (“Net Worth”) at least equal to the Net Worth of all Tenant on the terms, covenants and conditions which this Lease requires Tenant to performday immediately preceding the effective date of such assignment or sublease, and (v) include a requirement that any subtenant attorn no assignment relating to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalthis Lease, duly executed assignment whether with or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for without Landlord’s consent, whether or not such shall relieve Tenant from any liability under this Lease, and, in the event of an assignment or sublease is approved. Notwithstanding anything else of Tenant’s entire interest in this article containedLease, as a condition to Landlord’s written approval the liability of any sublease by Tenant, Landlord may require that it Tenant and such transferee shall be entitled to joint and several. “Control,” as used in this Section 10.5, shall mean the receipt ownership, directly or indirectly, of at least fifty-one hundred percent (10051%) of the voting securities of, or possession of the right to vote, in the ordinary direction of its affairs, of at least fifty-one percent (51%) of the voting interest in, any profit derived by Tenant as person or entity.
(b) Landlord shall not unreasonably withhold, delay or condition its consent to assignment of this Lease, or a result subletting of such sublease. Such profit all or any portion of the Premises, provided that: (i) the assignee or sublessee shall be an entity which in the reasonable judgment of Landlord, is defined as any amounts received by Tenant from its subtenant pursuant reputable and financially responsible; (ii) the assignee or sublessee shall be engaged in an activity consistent with a Class A office building and shall not provide services directly to the sublease general public at the Premises; (iii) the proposed assignee or sublessee shall not be then engaged in excess negotiations with Landlord for a lease of space in the Rent Building; (iv) if rents or other charges required to be paid to Tenant by the assignee or sublessee (“Assignee Rent”) exceed the rents and other charges reserved hereunder, after deducting reasonable expenses of subletting, including rent concessions, leasehold improvement costs and brokerage commissions, (“Lease Rent”), Tenant hereunder. In shall pay to Landlord monthly as Additional Rent fifty (50%) percent of the absence difference between the Assignee Rent and the Lease Rent, and (v) no such assignment or subletting shall relieve Tenant of any such agreement between Tenant and of its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinobligations under this Lease.
Appears in 2 contracts
Sources: Lease Agreement (Cerecor Inc.), Lease Agreement (Cerecor Inc.)
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow cause any other person (the employeesor entity , agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the advance written consent of Landlord, Lessor which consent will shall not be unreasonably withheld. Notwithstanding the above, conditioned or delayed and will not be withheld if Lessee may, without the assigneeconsent of Lessor, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time or sublet all or any part of the subject transactionPremises to a bona fide subsidiary or affiliate of Lessee, and has substantial experience an entity in the operation which or with which Lessee merges or an entity which acquires all or substantially all of the Permitted Useassets of Lessee (“Excepted Party”). Any such assignment or subletting requiring Lessor’s consent made without such Lessor’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlordthe Lessor, constitute terminate this Lease. This Lease shall not, or shall any interest therein, be assignable, as to the interest of Lessee, by operation of law, without the written consent of Lessor. Notwithstanding Lessor’s obligation to provide reasonable approval, Lessor reserves the right to withhold its consent for any proposed sublessee or assignee of Lessee if the proposed sublessee or assignee is a user or generator of Hazardous Materials to an extent greater than Lessee’s use of Hazardous Materials at the Premises as of the Commencement Date. If Lessee desires to assign its rights under this Lease or to sublet all or any part of the Premises to a party other than an Excepted Party, Lessee shall first notify Lessor of the proposed terms and conditions of such assignment or subletting. With respect to any such proposed assignment of this Lease or sublease if the assignee or sublessee, respectively, fully occupies either the single story 60,482 square foot building or the 2-story 35,208 square foot building or the entire Premises, Lessor, at its sole option, shall have the right (i) to enter into a direct Lessor-lessee relationship with such party under such proposed terms and conditions, in which event Lessee shall be relieved of its obligations hereunder to the extent of the Lessor-lessee relationship entered into between Lessor and such third party, or (ii) to terminate the Lease and relieve Lessee of all Lease obligations occurring after the termination of the Lease. Notwithstanding the foregoing, Lessee may assign this Lease to an Excepted Party, provided there is no substantial reduction in the net worth of the Excepted Party below that of Lessee immediately before such assignment and the Security Deposit will remain in place. Whether or not Lessor’s consent to a sublease or assignment is required, in the event of any sublease or assignment, Lessee shall be and shall remain primarily liable for the performance of all conditions, covenants, and obligations of Lessee hereunder and, in the event of a default by an assignee or sublessee, Lessor may proceed directly against the original Lessee hereunder and/or any other predecessor of such assignee or sublessee without the necessity of exhausting remedies against said assignee or sublessee. Notwithstanding anything in this Lease to the contrary, Lessor acknowledges that Lessee currently intends to market the Premises and this Lease to prospective assignees of Lessee’s interest under this Lease. Lessor therefore agrees that Lessor will consent to such a proposed assignment of this Lease by Lessee, provided that (a) Lessee is not then in default under this Lease (beyond applicable notice and cure periods), (b) the terms proposed assignee has a net worth in excess of Fifty Million Dollars ($50,000,000) and the assignee’s financial statements prepared in accordance with U.S. GAAP, has net income and positive cash flow, excluding extraordinary items, during the four (4) calendar quarters immediately precedingLessee’s request for Lessor’s consent to such assignment, and (c) Lessee pays all brokerage commissions and any other out of pocket costs in connection with completing such assignment. Upon any such assignment of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant , Lessor and Lessee shall not be construed execute a Settlement Agreement and Release in the form attached hereto as a consent or waiver by LandlordExhibit B, nor as a release of Tenant, but and the same assignee shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Excepted Party hereunder.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Sipex Corp), Lease Agreement (Sipex Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building or would contravene the provisions of Article 13 of this Lease. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning a controlling interest in the Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, whether in a single transaction or in a series of transactions, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an entity which currently owns more than fifty percent (50%) of the voting stock of assignment or sublease, require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, assignee and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s such other financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity documentation relative to meet and interview the proposed subtenant or assignee as wellLandlord may reasonably require. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) In the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If event Landlord consents to a proposed an assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay to Landlord a fee to cover Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), 's accounting costs plus any legal fees actually incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant the assignment or sublease (not to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinexceed $1,000.
Appears in 2 contracts
Sources: Lease Agreement (Healtheon Corp), Lease Agreement (Healtheon Corp)
Assignment and Subletting. (a) Except as herein provided, Tenant shall may not (voluntarilyassign this lease in whole or in part, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease nor sublet all or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees portion of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name delayed and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider deemed granted if not given or denied in writing within thirty (i30) days from Tenant’s written request therefor. Further, notwithstanding the relative financial strengthforegoing, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of consent shall not be required if such assignment or sublease is from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent, if any. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. No assignment, under letting, occupancy or collection shall be satisfactory deemed acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. This prohibition against assignment or subleasing includes those by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Landlord, by its acceptance hereof, acknowledges that Tenant may mortgage or collaterally assign its interest in and to Landlord and shall (i) incorporate this Lease in its entirety and be subject the leasehold estate created hereunder to its termsinstitutional lenders providing financing to Tenant, (ii) provide that to Tenant’s parent, if any, or to any subsidiary or affiliate of Tenant. Tenant shall remain fully liable under on this Lease, (iii) provide that subtenant will comply with all terms Lease and conditions shall not be released from performing any of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that hereof or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment rents or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required sums to be paid by Tenant hereunder. Tenant acknowledges and agrees that any and all right and interest of the Landlord in and to the Premises, and all right and interest of the Landlord in this Lease, may be conveyed, assigned or encumbered at the sole discretion of the Landlord at any time. In addition, notwithstanding the absence of any such agreement between Tenant and its subtenantforegoing to the contrary, there will be deemed to be no profit. Tenant shall deliver have the right to license or sublet all documents pertaining or any portion of the Premises to any a physician, physician group, professional corporation or other entity licensed to practice medicine in the State of Florida or to such subletting to Landlord upon other individuals or entities providing health-related services, without first obtaining Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinprior consent.
Appears in 2 contracts
Sources: Lease (Radiation Therapy Services Holdings, Inc.), Lease (Radiation Therapy Services Holdings, Inc.)
Assignment and Subletting. (a) A. Tenant shall not (voluntarilytransfer or assign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any right or interest thereinhereunder, and shall not nor sublet the Premises said premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent (which consent shall not be unreasonable withheld) and approval of LandlordLandlord provided, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant however, that such consent shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee not be unreasonably withheld so long as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation proposed assignee or sublessee is as financially and operational/management experience of morally responsible as Tenant and the proposed subtenant or assignee, (ii) any history evidence satisfactory to Landlord is offered to show that the proposed subtenant assignee or anyone has with the liquor licensing agencies sublessee is likely to conduct on said premises a business of a quality substantially equal to that conducted by Tenant. No transfer or assignment, whether voluntary or involuntary, by operation of law, under legal process or proceedings, by receivership, in bankruptcy, or otherwise, and no subletting shall be valid or effective without such prior written consent and approval. Should Tenant attempt to make or suffer to be made any such transfer, assignment or subletting, except as aforesaid, or should any of Tenant's rights under this Lease be sold or otherwise transferred by or under court order or legal process or otherwise or should Tenant be adjudged insolvent or bankrupt, then and in any of the City foregoing events Landlord may, at its option, terminate this Lease forthwith by written notice thereof to Tenant. Should Landlord consent to any such transfer, assignment or subletting, such consent shall not constitute a waiver of Glendale any of the restrictions of this Article and the State of Coloradosame shall apply to each successive transfer, and (iii) whether the use of the Premises after such sublease assignment or assignment would create any nuisance or violate any federalsubletting hereunder, state or local laws or involve Hazardous Materialsif any.
(c) B. If Landlord consents to Tenant hereunder is a proposed corporation, an unincorporated association, or a partnership, the transfer, assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval hypothecation of any sublease by Tenantstock or interest in such corporation, Landlord may require that it shall be entitled to association or partnership in the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease aggregate in excess of Forty-nine percent (49%) shall be deemed an assignment within the Rent required to be paid by Tenant hereunder. In the absence meaning and provisions of this Article; provided, however, a transfer or assignment of any such agreement between Tenant and its subtenantstock or interest by a shareholder or member to his spouse, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant children or grandchildren is excepted from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinforegoing provision.
Appears in 2 contracts
Assignment and Subletting. (a) Tenant Lessee shall not (voluntarilyassign this Lease, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow cause any other person (the employeesor entity, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the advance written consent of LandlordLessor. Notwithstanding the above, which Lessee may, without the consent will not be unreasonably withheldof Lessor, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time or sublet all or any part of the subject transactionPremises to a bona fide subsidiary or affiliate of Lessee, and has substantial experience an entity in the operation which or with which Lessee merges or an entity which acquires all or substantially all of the Permitted Useassets of Lessee (“Excepted Party”). Any such assignment or subletting requiring Lessor’s consent made without such Lessor’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlordthe Lessor, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than Tenant This Lease shall not not, or shall any interest therein, be construed assignable, as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13interest of Lessee, Tenant may assign or sublet the Premises by operation of law, without the prior written consent of LandlordLessor. Notwithstanding Lessor’s obligation to provide reasonable approval, Lessor reserves the right to withhold its consent for any proposed sublessee or assignee of Lessee if the proposed sublessee or assignee is a user or generator of Hazardous Materials. If Lessee desires to assign its rights under this Lease or to sublet all or any part of the Premises to a party other than an Excepted Party, Lessee shall first notify Lessor of the proposed terms and conditions of such assignment or subletting. Lessor, at its sole option, shall have the right (i) to enter into a direct Lessor-lessee relationship with such party under such proposed terms and conditions, in which event Lessee shall be relieved of its obligations hereunder to the extent of the Lessor-lessee relationship entered into between Lessor and such third party, or (ii) to terminate the Lease and relieve Lessee of all Lease obligations occurring after the termination of the Lease. Notwithstanding the foregoing, Lessee may assign this Lease to an entity which currently owns more than fifty percent (50%) Excepted Party, provided there is no substantial reduction in the net worth of the voting stock of Tenant resulting guarantor. Whether or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with not Lessor’s consent to a copy of any proposed sublease or assignment that contains is required, in the name and address event of the proposed subtenant or assignee, the anticipated effective date of the proposed any sublease or assignment, Lessee shall be and shall remain primarily liable for the duration performance of the term of any proposed subleaseall conditions, covenants, and obligations of Lessee hereunder and, in the amount event of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption default by an assignee or sublessee, Lessor may proceed directly against the original Lessee hereunder and/or any other predecessor of such assignee or sublessee without the necessity of exhausting remedies against said assignee or sublessee. If Lessee merges or sells substantially all of its assets and the termsnet worth of the resulting entity is substantially less than that of Lessee, covenants and conditions which such sale shall be a default under this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted approved by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLessor.
Appears in 2 contracts
Sources: Lease Agreement (Intevac Inc), Lease Agreement (Intevac Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, involuntarily, or by operation of law or otherwise) law, assign, transfer, pledge, mortgage, pledgehypothecate, hypothecate or otherwise encumber (herein collectively referred to as an “Assignment”) this Lease or any interest thereinof Tenant herein, and shall not in whole or in part, nor sublet the Premises whole or any part thereof, or of the Demised Premises nor grant any right or privilege appurtenant thereto, or allow license for any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, therein without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed in each and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without every instance the prior written consent of Landlord which consent shall not be unreasonably withheld. Any consent by Landlord to an Assignment, subletting, use or occupancy by others shall be held to apply only to the specific transaction thereby authorized and shall not constitute a waiver of the necessity for such Landlord’s consent to any subsequent Assignment, subletting, use or occupancy by others. If Tenant causes this Lease or any interest herein to be assigned or if the Demised Premises or any part thereof be sublet, used or occupied by anyone other than Tenant without Landlord’s prior written consent having been obtained in advance thereof and in accordance with the provisions hereof, then Landlord in addition to any other right or remedy it may have hereunder or at law or in equity may in its sole and absolute discretion collect sums due Landlord hereunder from the assignee, sublessee, licensee, user or occupant and apply the net amount collected to the rents herein reserved including, but not limited to, Base Annual Rent and Additional Charges, but no such assignment, subletting, use, licensing, occupancy or collection shall be deemed a waiver of the covenant herein against Assignment, subletting, use or occupancy by others, or the acceptance of the assignee, subtenant, user, licensee or occupant as Tenant hereunder, or constitute a release of Tenant from the further performance by Tenant of any of the terms and provisions of this Lease.
(a) In no event under this Lease, including, but not limited to, any sublet, assignment, or other transfer of this Lease by Tenant, whether consented to by Landlord, or otherwise, shall Tenant ever be released from any of its obligations under this Lease, or the full performance of all obligations under this Lease.
(b) In the event Tenant is a corporation or a general partnership, any dissolution, merger, consolidation or other reorganization of such corporation or any pledge of or any sale or other transfer of a “Controlling Percentage” (as hereinafter defined) of the corporate stock of Tenant or interest in the general partnership (whether in a single transaction or cumulatively) shall constitute an assignment of this Lease for all purposes of this Article 10. The term “Controlling Percentage,” as used herein, shall mean the ownership of stock (or interest in the general partnership) possessing, or having the right to an entity which currently owns more than fifty exercise, at least fifty-one percent (5051%) of the total combined voting stock power (of Tenant or which Tenant owns greater than fifty percent (50%the interest in the general partnership) of all classes of stock (of such corporation, issued, outstanding and entitled to vote for the election of directors, whether such ownership be direct ownership or all classes indirect ownership, through ownership of partnership or membership interest).
(bstock of another corporation. This Section 10.01(d) shall not apply whenever Tenant shall provide Landlord with is a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneecorporation, the anticipated effective date outstanding voting stock of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to is listed on a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsnationally recognized securities exchange.
(c) If Landlord consents to Tenant is a proposed assignment or subleaselimited partnership and if at any time during the Term, the form person or persons who at the time of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate the execution of this Lease in its entirety and be subject owns or own the general partners’ interest thereof, cease to its termsown such general partners’ interest thereof, (ii) provide that Tenant such cessation of ownership shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions constitute an assignment of this Lease, Lease for all purposes of this Article 10 (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant except as a result of such sublease. Such profit is defined as transfers by bequests or inheritance).
(d) No assignment, subletting or any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence other transfer of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver portion or all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, interest under this Lease shall ever operate to release Tenant of any of its obligations or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinliabilities hereunder.
Appears in 2 contracts
Sources: Lease Agreement (Bankrate, Inc.), Lease Agreement (Bankrate Inc)
Assignment and Subletting. (ai) Tenant shall not assign, mortgage or encumber this Lease, nor sublet, suffer or permit the Premises or any part thereof to be used by others, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant without Landlord’s prior written consent, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance of its covenants herein contained. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant from obtaining Landlord’s written consent to any further assignment or subletting.
(voluntarilyii) For the purposes of this Lease, an “assignment” prohibited by this Section shall be deemed to include the following: (i) if Tenant is a partnership, a withdrawal or change (voluntary, involuntary, by operation of law or otherwise) assignof any of the partners thereof, or the dissolution of the partnership; (ii) if Tenant consists of more than one person, a purported assignment, transfer, mortgagemortgage or encumbrance (voluntary, pledgeinvoluntary, hypothecate by operation of law or encumber this Lease otherwise) from one thereof unto the other or others thereof; (iii) if Tenant is a corporation, any interest thereindissolution, and shall not sublet the Premises merger, consolidation or any part thereofother reorganization of Tenant, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience change in the ownership (voluntary, involuntary, by operation of the Permitted Use. Any assignment law, creation of new stock or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%otherwise) of 50% or more of its capital stock from the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains ownership existing on the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease execution hereof; or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption if Tenant is any other entity, including a limited liability company, any dissolution or any change in ownership (voluntary, involuntary, by operation of law or otherwise) of 50% or more in the aggregate of an assignee interest in Tenant by any party or parties in interest on the date of all the terms, covenants and conditions which this Lease requires Tenant to perform, and execution hereof; or (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment sale of 50% or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess more of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration value of the transfer assets of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Plures Technologies, Inc./De), Lease (CMSF Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shallProvided that, at the option of Landlordall times, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation no Event of Default (as defined in Section 13.1. ) under this Lease has occurred and operational/management experience of Tenant and the proposed subtenant or assignee, is continuing; (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale sublease is expressly subject and the State of Colorado, subordinate to this Lease; and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain primarily liable for all of Tenant’s obligations under this Lease, Tenant may sublet the Premises, in whole or in part, without Landlord’s consent (“Permitted Subleases”). Upon any such sublease or upon any assignment of this Lease by Tenant, Tenant shall remain primarily liable to Landlord for timely payment and performance of all Rent and other obligations under this Lease. Tenant agrees to promptly notify Landlord in writing of all Permitted Subleases the Tenant enters into under this Lease. Landlord may accept Rent, Additional Rent, and any other sums that may become due under this Lease directly from any subtenant as agent for Tenant and require attornment of such subtenant in the event that this Lease is terminated or fails for any reason whatsoever. Notwithstanding anything contained herein to the contrary, Landlord’s consent shall not be required for, and nothing shall prohibit or restrict any leasehold mortgage entered into by Tenant, or any assignment of this Lease or subletting of a part or the whole of the Premises by Tenant: (i) to an affiliate of Tenant; (ii) in conjunction with any consolidation, reorganization, merger, acquisition, or private placement involving Tenant or any of its affiliate(s); (iii) provide that subtenant will comply with to any corporation or other business entity purchasing all terms and conditions or substantially all of this Lease, the assets of Tenant or any of its affiliate(s); or (iv) provide for assumption by an assignee in conjunction with any offering, sale, listing, redemption, hypothecation, conversion, exchange, transfer or other similar disposition of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that or any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to be paid by membership interests of Tenant hereunder. In the absence or any of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinaffiliate(s).
Appears in 2 contracts
Sources: Master Lease (Foundation Healthcare, Inc.), Master Lease (Graymark Healthcare, Inc.)
Assignment and Subletting. Not to assign, transfer, mortgage or pledge this Lease or to grant a security interest in Tenant's rights hereunder, or to sublease (awhich term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant shall not (to occupy all or any part of the Premises or suffer or permit this Lease or the leasehold interest hereby created or any other rights arising under this Lease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law law, unless, in each instance the prior written consent of Landlord thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or otherwisedelayed. Notwithstanding the foregoing Tenant may assign this Lease or sublet any portion or all of the Premises to any corporation, partnership, trust, association, limited liability company or other business or organization (x) assigndirectly or indirectly controlling and beneficially owning Tenant, (y) directly or indirectly controlled by and beneficially owned by Tenant, or (z) under common control with Tenant, or to any successor of Tenant by merger, consolidation or acquisition of substantially all of the stock or assets of Tenant, without the prior written consent of Landlord. If for any assignment or sublease or occupancy by another, Tenant receives rent or other consideration, either initially or over the term of the assignment, sublease or occupancy, after payment of any expenses incurred in connection therewith, in excess of the rent called for hereunder, or in case of sublease of part of the Premises, in excess of such rent fairly allocable to the part so subleased, after deducting all expenses of such transaction including, without limitation, brokerage and legal fees and demising walls and other leasehold improvements, Tenant shall pay to Landlord, as Additional Rent, 50% of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Any attempted assignment, transfer, mortgage, pledge, hypothecate grant of security interest, sublease or encumber other encumbrance, except as permitted by this Lease Section 6.2.1, shall be void. No assignment, transfer, mortgage, grant of security interest, sublease or any interest thereinother encumbrance, whether or not approved, and shall not sublet the Premises or no indulgence granted by Landlord to any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant sublessee or transferee is reputable, has equal or better credit than Tenant and occupant shall in any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any way impair ▇▇▇▇▇▇'s continuing primary liability (which after an assignment or subletting without such consent (whether actual or deemed) shall be voidjoint and several with the assignee or sublessee) of Tenant hereunder, and shall, at the option of Landlord, constitute no approval in a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant particular instance shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) waiver of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with obligation to obtain ▇▇▇▇▇▇▇▇'s approval in any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialscase.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Furniture Com Inc), Lease (Furniture Com Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not may be withheld if in the assigneediscretion of Landlord. The transfer of more than five percent (5%) of the membership interests of Tenant or the transfer of five percent (5%) or more of the capital stock of the owner of Tenant or the corporate Guarantor, subtenant however accomplished, and whether in a single transaction or transferee is reputablein a series of related or unrelated transactions, has equal or better credit than Tenant and any guarantor will be deemed an assignment of this Lease at or such sublease requiring the time of the subject transaction, and has substantial experience Landlord’s consent in the operation of the Permitted Useeach instance. Any transfer by ▇▇▇▇ ▇▇▇▇▇▇ of his interest in Tenant or if ▇▇▇▇ ▇▇▇▇▇▇ ceases to be the [manager] of Tenant will be deemed a prohibited assignment of this Lease. Any prohibited assignment or subletting or any assignment or subletting without such Landlord’s consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, a copy of any purchase and sale agreement for the assets of Tenant, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City City/Village of Glendale Centerville, County of St. Clair and the State of ColoradoIllinois, and (iii) whether the use of the Demised Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws Laws or involve Hazardous Materials. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any assignment or sublease by Tenant, Landlord may require that it shall be entitled to the receipt of fifty percent (50%) of any profit derived by Tenant as a result of such assignment or sublease. Such profit is defined as any amounts received by Tenant from its assignee or subtenant in excess of the Rent required to be paid by Tenant hereunder. Tenant shall deliver all documents pertaining to any such assignment or subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its assignee or subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment or sale on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein. In no event shall the payment received by Landlord pursuant to this subparagraph (b) be less than $100,000.00.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain fully liable under this LeaseLease together with such assignee or subtenant, (iii) provide that the assignee or subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant or assignee attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars five thousand dollars ($1,000.005,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval .
(d) Any transfer for which consent is required of any sublease by Tenantparty having a mortgage, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) deed, or trust or other encumbrance or of any profit derived by Tenant as a result lessor under any ground or underlying lease of such sublease. Such profit is defined as all or any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit Property shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereineffective until such consent is given.
Appears in 2 contracts
Assignment and Subletting. (a) Tenant shall will not (voluntarily, by operation of law or otherwise) assign, transfermortgage or hypothecate this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not or permit the use of the Premises by any person or persons other than Tenant, or sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent consent, subject to Landlord’s right of termination under Paragraph 9(b) below, will not be unreasonably withheld, conditioned or delayed and will delayed. Consent to any such assignment or sublease shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time operate as a waiver of the subject transactionnecessity for a consent to any subsequent assignment or sublease, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of such consent shall be binding upon any person holding by, under or through Tenant.
(b) If Tenant desires to assign its interest in this Lease or to sublease all or any part of the Premises, Tenant shall notify Landlord in writing at least fifteen (15) Business days in advance of the proposed transaction. This notice shall be accompanied by: (i) a statement setting forth the name and business of the proposed assignee or subtenant a copy of the proposed form of assignment or sublease (and any collateral agreements) setting forth all of the material terms and the financial details of the sublease or assignment; (including, without limitation, the term, the rent and any security deposit, “key money” and amounts payable for the use, rental or purchase of Tenant’s property); (iii) financial statements and other information requested by Landlord relating to the proposed assignee or subtenant; and (iv) any other information concerning the proposed assignment or sublease which Landlord may reasonably request. If Tenant proposes to assign this Lease or sublet, all or more than 50% of the rentable square feet of the Premises, which for purposes herein shall exclude the outdoor patio, in the aggregate or in any one or more transactions, other than pursuant to a Permitted Transfer, Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above or the receipt of any additional information requested by Landlord. In addition, if Tenant proposes to sublet, in any one transaction, 2,000 rentable square feet or more of the Premises, Tenant shall, as part of its initial submittal to Landlord, provide Landlord with a basic demising plan (which plan shall exclude the outdoor patio area but shall include a depiction of the means of ingress and egress) for the proposed sublease premise (the “Sublease Space”), and Landlord shall have the right, in its sole and absolute discretion, to terminate this Lease as to the Sublease Space on written notice to Tenant within twenty one (21) days after receipt of Tenant’s notice and the information described above. If Landlord elects to terminate this Lease, this Lease shall terminate as of the effective date of the proposed assignment or commencement of the term of the proposed sublease as set forth in Tenant’s notice, and Landlord shall have the right (but no obligation) to enter into a direct lease with the proposed assignee or subtenant. Acceptance Tenant may withdraw its request for Landlord’s consent at any time prior to, but not after two (2) Business days following Landlord’s delivery of Rent by a written notice of termination.
(c) If Landlord from anyone other elects not to terminate this Lease (or that portion of the Lease as to the Sublease Space) pursuant to Paragraph 9(b) above, or if a proposed sublease is for less than Tenant the portion of the Premises entitling Landlord to elect to terminate this Lease pursuant to Paragraph 9(b) above, Landlord shall not unreasonably withhold its consent to an assignment or subletting. Landlord will endeavor to respond within twenty one (21) days of receipt of Tenant’s notice, but in any case shall respond to Tenant within thirty (30) days of receipt, except that no failure of Landlord to timely respond to Tenant’s notice seeking consent to a proposed transaction shall be construed as deemed or result in a consent or waiver by Landlordthereto. (For purposes of this Paragraph 9, nor as a release an assignment shall not include an assignment for security purposes, which shall only be permitted with the prior consent of Tenant, but the same shall be taken to be a payment on account of TenantLandlord in its sole and absolute discretion). A consent Consent to one assignment, subletting, occupation assignment or use by any other person sublease shall not be deemed to be a constitute consent by Landlord to any subsequent assignmentassignment or sublease. Tenant agrees that the withholding of Landlord’s consent shall be deemed reasonable if all of the following conditions are not satisfied:
(i) The proposed assignee or subtenant shall use the Premises only for the Permitted Use, sublettingand the business of the proposed assignee or subtenant is consistent with the standards of the Building, occupation in Landlord’s reasonable judgment.
(ii) The proposed assignee or use subtenant is reputable, has a creditworthiness reasonably acceptable to Landlord, and has sufficient financial capabilities to perform all of its obligations under this Lease or the proposed sublease, in Landlord’s reasonable judgment.
(iii) The proposed occupancy by another person. Notwithstanding anything the assignee or subtenant will not materially increase any Operating Expenses for the Building, or materially increase the burden on any Building services, and will not generate security concerns in the Building, in Landlord’s reasonable judgment.
(iv) Neither the proposed assignee or subtenant nor any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the proposed assignee or subtenant is an existing occupant of any part of the Project, or is a party to whom Landlord has, during the four (4) month period prior to the contrary delivery of Tenant’s written notice, marketed space in the Building that would generally fit such party’s leasing requirements.
(v) Tenant is not in default and has not committed acts or omissions which with the running of time or the giving of notice or both would constitute a default under this Lease.
(vi) All of the other terms of this Paragraph 139 are complied with.
(vii) The conditions described above are not exclusive and shall not limit or prevent Landlord from considering additional factors in determining if it should reasonably withhold its consent.
(d) Each permitted assignee, transferee, or subtenant, other than Landlord, shall assume and be deemed to have assumed this Lease and shall be liable jointly and severally with Tenant for the payment of the rent and for the due performance or satisfaction of all of the provisions, covenants, conditions and agreements herein contained on Tenant’s part to be performed or satisfied. Regardless of Landlord’s consent, no subletting or assignment shall release or alter Tenant’s obligation and primary liability to pay the rent and perform all other obligations under this Lease. No permitted assignment or sublease shall be binding on Landlord unless such assignee or subtenant, as the case may be shall deliver to Landlord a counterpart of such assignment or sublease which contains a covenant of assumption by the assignee or subtenant of the covenants and obligations of Tenant under the Lease; provided, however, as to any subtenant, such assumptions is limited to its obligations under the sublease.
(e) If Tenant is a partnership, a transfer of the interest of any general partner, a withdrawal of one or more general partner(s) from the partnership, or the dissolution of the partnership, shall be deemed to be an assignment of this Lease. If Tenant is currently a partnership (either general or limited) or joint venture, the conversion of the Tenant entity into any type of entity which possesses the characteristics of limited liability such as, by way of example only, a corporation, a limited liability company or limited liability partnership, shall be deemed an assignment for purposes of this Lease.
(f) Any notice by Tenant to Landlord pursuant to this Paragraph 9 of a proposed assignment or sublease shall be accompanied by a payment of $1,000 as a non-refundable fee for the processing of Tenant’s request for Landlord’s consent. In addition to said fee, Tenant may assign shall reimburse Landlord for reasonable attorneys’ fees incurred by Landlord in connection with such review and the preparation of documents in connection therewith.
(g) Whether or sublet the Premises without the prior written consent of not Landlord shall grant consent, Tenant shall pay Landlord’s review and processing fees, as well as any reasonable legal fees incurred by Landlord, within thirty (30) days after written request by Landlord; provided, however, if the proposed Transfer is a sublease or assignment of this Lease and Tenant accepts Landlord’s standard form of consent without material changes thereto, Landlord will limit all Landlord’s processing and legal, accounting and other professional fees and costs to an entity which currently owns more than amount not to exceed $2,500.00. Tenant’s payment of such sum shall be a condition precedent to the effectiveness of the proposed Transfer. Tenant shall pay to Landlord monthly on or before the first day of each month fifty percent (50%) of the voting stock rent or other consideration received from such assignee(s) or subtenant(s) relating to the leasehold estate of the Premises so assigned or sublet and with respect to the use of Tenant’s property, over and above the concurrent underlying rent payable by Tenant to Landlord for that portion of the Premises being assigned or which sublet, and after deduction for the amortized portion of the reasonable expenses actually paid by Tenant owns greater to unrelated third parties for brokerage commissions, legal fees, market concessions or tenant improvements to the Premises. Tenant shall furnish Landlord with a true signed copy of such assignment(s) or sublease(s) and any supplementary agreements or amendments thereto, within five (5) days after their respective execution.
(h) Effective upon any assignment of this Lease or subletting of more than fifty thirty three percent (5033%) of all classes the rentable square footage of stock the Premises (which calculation shall exclude the outside patio area), in each case in a transaction requiring the prior consent of Landlord, and notwithstanding any other provision of this Lease to the contrary, any options or all classes rights to extend the Term of partnership this Lease and/or as to expand into additional premises in the Building, and/or any unapplied rent credits or membership interest)improvement allowances granted to Tenant under this Lease, shall be null and void and of no further effect.
(bi) Notwithstanding anything to the contrary contained in this Lease, Tenant shall provide Landlord with a copy may, without Landlord’s prior written consent, and without risk of any proposed sublease or assignment that contains the name and address recapture of the proposed subtenant Premises, but upon written notice to Landlord, including copies of all applicable documentation, assign or assignee, the anticipated effective date sublet all or any portion of the proposed sublease or assignment, the duration of the term of any proposed sublease, leased premises and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenantTenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider interest in this Lease to: (i) a subsidiary, affiliate, parent or other entity to Tenant which controls, is controlled by, or is under common control with, Tenant; (ii) a successor entity to Tenant resulting from merger, consolidation, non-bankruptcy reorganization, or government action; or (iii) a purchaser of all or any significant portion of Tenant’s stock or assets; provided that such assignee, sublessee, or transferee has a net worth of at least equal to the relative financial strength, business reputation and operational/management experience Tenant as of Tenant and the proposed subtenant or assigneedate of this Lease (each transfer detailed in subsection (i), (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado), and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00“Permitted Transfer”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Lease (ThredUp Inc.), Office Lease (ThredUp Inc.)
Assignment and Subletting. (a) Tenant This Lease shall not (voluntarilybe assigned, mortgaged, pledged, encumbered or in any other manner transferred by the Tenant, voluntarily or involuntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and nor shall not sublet the Premises or any part thereofthereof be sublet, licensed, granted to a concessionaire or any right used or privilege appurtenant thereto, or allow any occupied by anyone other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofthan Tenant, without first obtaining the written prior consent of the Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation licensing, grant to a concessionaire or use or occupation by any anyone other person than Tenant, shall not be deemed to be constitute a waiver of the necessity for such consent to under any subsequent assignment, subletting, occupation licensing, grant to a concessionaire or use of occupation by another personanyone other than Tenant.
(b) If Tenant shall, during the term of this Lease, sublet all or any part of said Premises or assign this Lease, either with or without the consent of Landlord, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease be assigned, or if the Premises or any part thereof be subleased or occupied by anybody other than Tenant, Landlord may collect from the assignee, or following a default by Tenant under this Lease beyond applicable notice and cure periods, from any sublessee or occupant, any rent or other charges payable by Tenant under this Lease and apply the amount collected to the rent and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or occupant as a tenant nor a release of Tenant from the performance by Tenant under this Lease.
(c) Notwithstanding anything to the contrary in this Paragraph 13Lease, (i) Tenant may assign may, without Landlord’s prior written consent and without constituting an assignment or sublease hereunder, sublet the Premises without the prior written consent of Landlord, or assign this Lease to (a) an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant controlling, controlled by or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
under common control with Tenant, (b) an entity related to Tenant shall provide Landlord with by merger, consolidation, nonbankruptcy reorganization, or government action, or (c) a copy purchaser of any proposed sublease or assignment that contains the name a substantial portion of Tenant’s assets and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant a sale or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businesscapital stock or other equity interests shall not be deemed an assignment, trade name, inventory, subletting or goodwill: but any amount attributed to lease assignment on any document concerning other transfer of this Lease or the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 2 contracts
Sources: Lease Agreement (Affymetrix Inc), Lease Agreement (Affymetrix Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law assign, transfer, sublet, mortgage, or otherwise) assignotherwise transfer or encumber all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld. Any attempted assignment, transfer, mortgage, pledgeencumbrance, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, void and shall, at the option of Landlord, shall constitute a default under the terms breach of this Lease. Acceptance If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Rent Tenant, or the sale or other transfer of a controlling percentage of the capital stock of Tenant, or the sale of at least fifty-one (51%) percent of the value of the assets of Tenant shall be deemed a voluntary assignment. The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one (51%) percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding, and entitled to vote for the election of directors. This paragraph shall not apply to corporations the stock of which is traded through an exchange or over the counter.
(b) Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation to pay rent and to perform all other obligations to be performed by Tenant hereunder for the term of this Lease. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be a deemed consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Commercial Lease (Easyriders Inc), Commercial Lease (Easyriders Inc)
Assignment and Subletting. (a) Tenant The tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease lease or any interest therein, and shall not nor sublet the Premises premises or any part thereof, nor part with or share possession of all or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time part of the subject transactionpremises, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlordthe landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)consent shall not be unreasonably withheld.
(b) Tenant Notwithstanding and without prejudice to any other provision herein, in the event that the tenant desires to assign, sublet or part with or share possession of all or any part of the premises, or to transfer this lease in any other manner, in whole or in part, or to transfer any estate or interest thereunder, then and so often as such event shall occur the tenant shall give prior written notice to the landlord of such desire, specifying therein the proposed assignee, transferee, sub lessee or occupier and shall provide Landlord with to the landlord such information on the nature of the business of the proposed assignee, transferee, sub lessee or occupier and its financial responsibility and standing as the landlord may reasonably require and the terms and conditions of the proposed assignment, transfer, sublease or change in possession and shall deliver to the landlord a copy of any proposed the assignment, transfer or sublease or assignment that contains intended to be executed by the name tenant and address of the proposed subtenant or assignee, transferee or subtenant. Within 30 days after receipt of such notice, the anticipated effective date of landlord shall notify the proposed sublease or tenant in writing, that:
(1) It consents, or
(2) It does not consent as aforesaid to the assignment, transfer, subletting or parting with or sharing possession as the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord case may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsbe.
(c) If Landlord consents No such assignment, transfer, subletting or parting with or sharing possession shall in any manner release the tenant from its obligation for the payment of the rent and the observance and performance of the covenants, terms and conditions herein provided.
(d) The tenant shall not permit any part of the premises to be used or occupied by any persons other than the tenant or any permitted subtenants and the employees of the tenant and any such permitted subtenant, and shall not permit any part of the premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the premises other than the tenant, such permitted subtenants, and their respective employees, customers and other having legitimate business with them.
(e) The tenant shall insert in every permitted sublease of the premises a proposed covenant by the sub lessee with the sub lessor to produce to the landlord within one month immediately following the making thereof a copy of every assignment of the sub-demised premises or subleaseany part thereof made by the sub lessee or the persons deriving title under it.
(f) The tenant shall, at the form request of the landlord, require any assignee of the interest of the tenant hereunder, at the time of such assignment or sublease shall be satisfactory assignment, to Landlord enter into a written agreement with the landlord whereby the assignee covenants and shall (i) incorporate this Lease in its entirety agrees with the landlord to observe and be subject to its termsperform all of the covenants, (ii) provide that Tenant shall remain liable under this Leaseagreements, (iii) provide that subtenant will comply with all provisions, terms and conditions of this Leaselease, (iv) provide for assumption by an provided that if the tenants fails to require the assignee of all to enter into such a written agreement at the terms, covenants and conditions which this Lease requires Tenant landlord’s request the landlord may refuse to perform, and (v) include a requirement that any subtenant attorn grant its consent to the Landlord. Landlord’s assignment, or where such consent will is not required the assignment shall not be effective unless and until Tenant delivers such written agreement is executed by the assignee. Without in any way restricting the generality of the landlord’s right to Landlord refuse to consent to an original, duly executed assignment or subleasesubletting, as the case landlord may be, refuse to grant its consent to an assignment or subletting in a form satisfactory to Landlord, as set forth herein. the event that this lease is not in good standing.
(g) The Tenant shall forthwith upon demand by the landlord, pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease reimburse to the landlord all solicitors fees and all other materials submitted costs, charges, and expenses reasonably incurred by Tenant the landlord in connection with the tenant’s request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining consent to any such assignment, subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration or parting with or sharing of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinpossession.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Bi-Optic Ventures Inc)
Assignment and Subletting. Section 13.1 Tenant shall not, without Landlord's prior written consent, ------------ which will not be unreasonably withheld: (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transferconvey, mortgage, pledge, hypothecate encumber or encumber otherwise transfer (whether voluntarily or otherwise) this Lease or any interest thereinunder it (in the event Tenant is a corporation, and any transfer, sale, pledge, or other disposition cumulatively of more than fifty (50%) of the corporate stock or voting securities of Tenant shall not be deemed as assignment); (b) allow any transfer thereof or any lien upon the Tenant's interest by operation of law; (c) sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (d) permit the employees, agents, servants and invitees use of Tenant excepted) to occupy or use occupancy of the Premises, Premises or any portion thereof, without first obtaining part thereof by anyone other than the written consent Tenant. In no event shall Landlord be held responsible for monetary damages for the withholding of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and consent. Notwithstanding any guarantor provision of this Lease at on the time of the subject transactioncontrary, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed released from any of its obligations hereunder as a consent result of any assignment or waiver by subletting, the acceptance of rent from any unapproved assignee or subtenant shall not constitute Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's consent to one assignment, any such assignment or subletting, occupation the consent to any assignment or use by any other person subletting shall not be deemed to be a consent to any subsequent assignment or subletting, and no option to renew or extend this Lease or any other option that may be granted to Tenant in this Lease shall be exercisable by any assignee or subtenant, as Tenant agrees that all of such options to Tenant are personal to Tenant and may not be exercised by any other party. Landlord's consent to any assignment or subletting may be conditioned upon, among other things, the financial capabilities of the proposed assignee or subtenant. Under no circumstances shall Landlord be required to consent to the assignment or subletting to any party whose business Landlord determined is more likely to utilize hazardous substances or is more likely to adversely effect any insurance policy respecting the property.
Section 13.2 Tenant agrees to pay Landlord, on demand, reasonable fees ------------ incurred by Landlord in connection with any request by Tenant for Landlord to consent to any assignment or subletting by Tenant.
Section 13.3 If this Lease is assigned, or if the Premises or any part ------------ thereof by sublet to otherwise is occupied by anyone other than Tenant, Landlord may collect Rent from any such assignee, subtenant or occupant and apply net amount collected to the Rent herein reserved, but such assignment, subletting, occupation occupancy or use by another person. Notwithstanding anything to the contrary collection of Rent shall be deemed a waiver of any of Tenant's covenants contained in this Paragraph 13Lease, or a release of Tenant may assign from further performance of Tenant's covenants including, but not limited to, Tenant's covenants to pay Rent.
Section 13.4 Upon assignment, subletting or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) other occupancy of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition------------ Premises, Tenant shall provide detailed information regarding pay to Landlord monthly as Additional Rent, the proposed subtenant’s excess of consideration received or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information to be received during such month over Rental reserved for such month in this Lease which Landlord reasonably requires. Landlord may require an opportunity is applicable to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use such portion of the Premises after such sublease so assigned, sublet or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialsoccupied.
(c) If Landlord consents Section 13.5 In the event Tenant, with Landlord's prior written consent, ------------ subleases to a proposed assignment or subleasethird party, the form of such assignment or sublease subtenant shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will and comply with all terms and conditions requirements of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Lease (Nicklebys Com Inc), Industrial Lease (Nicklebys Com Inc)
Assignment and Subletting. (a) Except as expressly provided below, Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactiondelayed, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. Notwithstanding anything to the contrary in this Paragraph 13herein, Tenant may assign or sublet the Premises may, upon written notice to Landlord, but without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, transfer (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed by assignment or sublease, the form of such assignment in whole or sublease shall be satisfactory to Landlord and shall (iin part) incorporate this Lease in its entirety and be subject to its termsany parent or affiliate of Tenant or to a wholly owned subsidiary of Tenant, or (ii) provide that Tenant shall remain liable under this Lease, transfer (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as in whole or in part) this Lease to any person or entity acquiring, by asset or stock purchase, merger, consolidation or liquidation, all or substantially all of Tenant's assets or voting stock, provided that such person or entity assumes in writing the case may beobligations of Tenant under this Lease ("Permitted Transfer"). If Tenant realizes any rent or other consideration under any such assignment, in subletting or occupancy (other than a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%Permitted Transfer) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Base Rent required to be paid and other sums payable hereunder, after amortization of the reasonable costs incurred by Tenant hereunder. In for leasing commissions and leasehold improvements in connection with such assignment, subletting or occupancy over the absence term of any such agreement between Tenant and its subtenantassignment, there will be deemed to be no profit. subletting or occupancy, Tenant shall deliver all documents pertaining pay to Landlord 50% of the excess Base Rent promptly upon receipt by Tenant. Landlord may charge a reasonable fee not to exceed $1,000 as part of its consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessassignment, trade name, inventorysublease, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinencumbrance.
Appears in 2 contracts
Sources: Lease (Hei Inc), Lease (Colorado Medtech Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarilycovenants and agrees that neither this Lease nor the Term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred and that neither the Premises nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Tenant, or used or occupied or permitted to be used or occupied, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereofanyone other than Tenant, or for any right use or privilege appurtenant theretopurpose other than a Permitted Use, or allow any other person be sublet (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofwhich term, without first obtaining limitation, shall include granting of concessions, licenses and the written like) in whole or in part without Landlord's consent of Landlord, which consent will not be unreasonably withheld, conditioned withheld or delayed and will delayed. The foregoing restrictions shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor applicable to an assignment of this Lease at the time or a subletting of the subject transaction, and has substantial experience in the operation Premises by Tenant to any of the Permitted Usefollowing parties (collectively called the "Related Occupants"): a subsidiary wholly-owned by Tenant or to a controlling corporation, the stock of which is wholly-owned by the stockholders of Tenant, to any Affiliate of Tenant, to any purchaser of all or substantially all of Tenant's business or to any successor of Tenant by merger or consolidation provided, however, that any such Affiliate, purchaser or successor shall have a net worth not less than that of Tenant immediately prior to such merger, consolidation or purchase. Any It shall be a condition of the validity of any assignment, whether with the consent of Landlord or to a subsidiary or controlling corporation, that the assignee agree directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment and subletting. No assignment or subletting without such consent (whether actual or deemed) shall be void, relieve Tenant from its obligations hereunder and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personremain fully and primarily liable therefor. Notwithstanding anything to the contrary contained herein, Landlord shall be entitled to collect (i) one hundred (100%) percent of any profit related to any assignment in connection with this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than Lease and (ii) fifty percent (50%) percent of any rent, income or profit derived from any sublease of any portion of the voting stock Premises in excess of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)Tenant's Base Subleasing Profit.
(b) If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, whether or not it has consented to any such assignment, subletting or occupancy, at any time and from time to time collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any breach of Section 8.1 (a), or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the further performance by Tenant of its obligations hereunder. The consent by Landlord to an assignment or subletting shall in no way be construed to relieve Tenant or any successor from obtaining the express consent in writing of Landlord to any further assignment or subletting nor shall any such consent release, diminish or impair Tenant's continuing primary liability for performance of this Lease. No assignment or subletting and no use of the Premises by a subsidiary wholly-owned by Tenant or controlling corporation of Tenant shall provide Landlord affect the Permitted Uses.
(c) In connection with any request by Tenant for Landlord's consent to a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionas required under Section 9.13(a), Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which first submit to Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider in writing: (i) the relative financial strength, business reputation and operational/management experience name of Tenant and the proposed subtenant or assigneesubtenant, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale such information as to its financial responsibility and the State of Coloradostanding as Landlord may reasonably require, and (iii) whether all terms and provisions upon which the use proposed subletting is to be made. Upon receipt from Tenant of such requested information if Tenant is proposing a sublease of the entire Premises, Landlord shall have an option (the "Take Back Option") to be exercised in writing within thirty (30) days after its receipt from Tenant of such requested information, to cancel or terminate this Lease, as of the date set forth in Landlord's notice of exercise of the Take Back Option, which shall not be less than sixty (60) days nor more than one hundred twenty (120) days following the giving of such notice. In the event Landlord shall exercise the Take Back Option, Tenant shall surrender possession of the entire Premises, on the date set forth in such notice in accordance with the provisions of this Lease relating to the surrender of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) at the expiration of the Term. If Landlord consents exercises the Take Back Option, Landlord shall pay to a proposed assignment or sublease, Tenant the form unamortized value of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn tenant improvements located within the Premises. Notwithstanding anything to the contrary contained herein, Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the 's Take Back Option is applicable only if Tenant's request for Landlord’s consent, whether or not such assignment or 's consent to a sublease is approved. Notwithstanding anything else in this article contained, as involves a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinentire Premises.
Appears in 2 contracts
Sources: Lease (Aquila Biopharmaceuticals Inc), Lease (Aquila Biopharmaceuticals Inc)
Assignment and Subletting. (aExcept as provided in Paragraph 24(d) hereof, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfermortgage or pledge this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premisespremises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained. A consent to one assignment, which consent will mortgage pledge, subletting, occupation or use by any other person shall not relieve the Tenant from any obligation under this Lease, and shall not be unreasonably withhelddeemed to be a consent to any subsequent assignment, conditioned mortgage, pledge, subletting, occupation or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance of Rent by Landlord from anyone other than .
(a) If the Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one desires any assignment, mortgage, pledge or subletting, occupation or use by any other person referred to in Paragraph 24, Tenant shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything give written notice to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains giving the name and address of the proposed subtenant or assignee, mortgagee, pledgee, sublesee, occupier or user, and the anticipated effective date price and other terms of the proposed transaction. At the same time, Tenant shall, in writing, tender by an offer to the Landlord the option to (i) reacquire the premises for the same period and under the same terms as the proposed assignment or sublease, or (ii) reacquire the premises for the same period but at a price equal to the lease rent. If the Landlord accepts the offer, it shall do so by mailing written notice of its acceptance to Tenant within thirty (30) days after Tenant's offer is received by Landlord. Tenant shall be entitled to withdraw its notice of intent to assign, mortgage, pledge, sublet, occupy or use, at any time until Landlord accepts Tenant's offer. If only a portion of the premises would be affected by a sublease or assignment, assignment Landlord shall have the duration of right to reacquire the term of any proposed sublease, and portion affected. If Landlord elects to reacquire under this provision the amount of space any proposed subtenant will occupy. In additionportion affected, Tenant shall be required to provide detailed information regarding without charge reasonable and appropriate access to the portion affected and reasonable use of any common facilities.
(b) If Landlord does not choose to accept Tenant's offer under Subparagraph 24(a), but does consent to the proposed subtenant’s assignment, mortgage, pledge, subletting, occupation or assignee’s financial condition use referred to in Paragraph 24, Landlord shall have the r▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇enant any profit realized by Tenant from charging a higher rent than the lease rent. Such profit shall be measured by the difference between the lease rent and credit historyany rent received by Tenant, relevant business history minus Tenant's reasonable leasing and experienceadministrative costs related to the assignment or subletting, together with and excess of building standards. For this purpose, "rent received by Tenant" shall include all sums paid under the sublease of assignment, whether characterized as rent, additional rent, or any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant payment or assignee as well. For purposes consideration in respect of Landlord’s consent to a proposed sublease use or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant occupancy or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies in reimbursement of the City costs of Glendale and the State of Coloradoleasehold improvements installed by Tenant, and (iii) whether paid in a lump sum or in periodic payments. In no event shall the use total sums payable to Landlord, including the lease rent and any additional payments made by Tenant to Landlord as a result of the Premises after such sublease or assignment would create any nuisance or violate any federalapplication of this paragraph, state or local laws or involve Hazardous Materialsbe less than the lease rent.
(c) If The provisions in Paragraphs 24(a) and (b) shall be binding on any subtenant or assignee who desires to sub-sublet or sub-assign their interest, and Landlord's actions with respect to one assignment, mortgage, pledge, sublease, occupation or use shall not be deemed to limit Landlord's options under this Lease with respect to a subsequent assignment, mortgage, pledge, sublease, occupation or use. Landlord's rights under Paragraphs 24(a) and (b) shall prevail over any inconsistent language in any sublease or assignment to which Landlord consents to a proposed assignment or sublease, and are reserved by Landlord from the form grant of such assignment or sublease Tenant's leasehold estate. Nothing herein shall be satisfactory construed to Landlord and shall require Landlord's consent to any assignment, mortgage, pledge, subletting, occupation or use referred to in Paragraph 24 (iso long as Landlord's consent is not unreasonably withheld). Any exercise of Landlord's rights under Paragraphs 24(a) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (vb) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitreasonable. Failure of any subtenant or assigns to make any payments to Tenant shall not affect the obligation of Tenant to pay the lease rent or any other obligation under the Lease owing to Landlord. The provisions of any sublease or assignment cannot be modified, nor may the sublease or assignment be terminated other than in accordance with its terms, without the written consent of Landlord.
(d) Tenant shall have the right, without Landlord's consent, to assign this Lease to a general or limited partnership if (1) Tenant is a general partner and owns and retains not less than 51% of the partnership following the assignment and (2) the partnership executes an agreement required by Landlord assuming Tenant's obligations. Tenant shall deliver all documents pertaining have the right, without Landlord's consent to any such subletting assign this Lease to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to a corporation if (1) Tenant from its subtenant in consideration owns and retains at least 51% of the transfer outstanding capital stock of the corporation and (2) the corporation executes an agreement required by Landlord assuming Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein's obligations.
Appears in 2 contracts
Sources: Lease Agreement (Zapworld Com), Lease Agreement (Zapworld Com)
Assignment and Subletting. (a) Tenant shall not (voluntarilyNeither this Lease nor any right hereunder may be assigned, transferred, encumbered, or sublet in whole or in part by Lessee, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLessor’s prior consent, which consent will shall not be unreasonably withheld, conditioned delayed or delayed and will not be withheld if conditioned. If Lessee is an entity of any kind, the assignee, subtenant transfer or transferee is reputable, has equal pledge of 51% or better credit than Tenant and any guarantor of this Lease at more (aggregated over the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms life of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the ownership and/or voting interests in Lessee shall be deemed an assignment within the meaning of this Section; provided, however, that the foregoing restriction on transfer or pledge shall not apply to Lessee in connection with or as a result of an initial public offering of its stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant and shall provide Landlord with not apply if and for so long as Lessee is a copy of any proposed sublease or assignment that contains publicly-traded company. Notwithstanding the name and address of foregoing, Lessee shall have the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of right without Landlord’s consent to a proposed assign or sublease this Lease to an affiliate which is under common control with Lessee or assignment, it shall be considered reasonable for Landlord to consider (i) any person or entity succeeding to the relative financial strength, Lessee’s business reputation and operational/management experience of Tenant and conducted at the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Premises. A portion of the Premises after such sublease may without Landlord’s consent be used or assignment would create any nuisance occupied by a party or violate any federalparties in connection with the transaction of business with Lessee or an entity that controls, state is controlled by, or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed is under common control with Lessee. No assignment or sublease, the form sublease shall relieve Lessee of such its liabilities hereunder and no consent to any assignment or sublease shall be satisfactory deemed a consent to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed further assignment or sublease. If Lessee requests Lessor’s consent, as the case may be, Lessee shall reimburse Lessor for its reasonable legal and administrative costs incurred in connection with such request up to a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed maximum of One Thousand Dollars ($$ 1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else Lessor may assign its interest in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such subleaseLease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSee also Section 40(i).
Appears in 2 contracts
Sources: Commercial Lease (HouseValues, Inc.), Commercial Lease (HouseValues, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilydirectly or indirectly voluntarily or involuntarily, by operation of law or otherwise) assign, transferassign sublet, mortgage, pledge, mortgage hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest therein, and shall not sublet license in or suffer any person other than Tenant or its employees to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld. Any such attempted assignment subletting, conditioned license, mortgage hypothecation, other encumbrance or delayed other use or occupancy without the consent of Landlord shall be null and will not be withheld if void and of no effect. Any mortgage, hypothecation or encumbrance of all or any portion of Tenant’s interest in this Lease or in the assignee, subtenant Premises and any grant of a license or transferee is reputable, has equal or better credit sufferance of any person other than Tenant and or its employees to use or occupy the Premises or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) part thereof shall be void, and shall, at the option of Landlord, constitute a default under the terms deemed to be an “assignment” of this Lease. Acceptance In addition as used in this Paragraph 11, the term “Tenant” shall also mean any entity that has guaranteed Tenant s obligations under this Lease, and the restrictions applicable to Tenant contained herein shall also be applicable to such guarantor.
(b) No assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentportion thereof, it shall be considered reasonable for first notify Landlord of its desire to consider (i) the relative financial strength, business reputation do so and operational/management experience of Tenant and shall submit in writing to Landlord all pertinent information relating to the proposed subtenant assignee or assigneesublessee, (ii) any history that all pertinent information relating to the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning Tenant and the form of such proposed assignee or subtenant. Any assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, .
(ivc) provide for assumption At any time within thirty (30) days after Landlord’s receipt of the information specified in subparagraph (b) above Landlord may by an assignee of all the terms, covenants and conditions which written notice to Tenant elect to terminate this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn as to the Landlord. Landlord’s consent will not portion of the Premises so proposed to be effective unless and until Tenant delivers to Landlord an original, duly executed assignment subleased or sublease, as assigned (which may include all of the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00Premises), incurred for review of such assignment or sublease and all other materials submitted by with a proportionate abatement in the Rent payable hereunder.
(d) Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require acknowledges that it shall be entitled reasonable for Landlord to withhold its consent to a proposed assignment or sublease in any of the following instances:
(i) The assignee or sublessee (or any affiliate of the assignee or sublessee) is not in Landlord’s reasonable opinion, sufficiently creditworthy to perform the obligations such assignee or sublessee will have under this Lease;
(ii) The intended use of the Premises by the assignee or sublessee is not for general office use;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the receipt Premises or the Building;
(iv) Occupancy of one hundred percent (100%) the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant agreement binding upon Landlord, the Building or the Project with regard to the sublease identity of tenants, usage in excess the Building, or similar matters;
(v) The assignee or sublessee (or any affiliate of the Rent required to be paid by Tenant hereunder. In assignee or sublessee) is then negotiating with Landlord or has negotiated with Landlord within the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryprevious six (6) months, or goodwill: but any amount attributed to lease assignment on any document concerning is a current tenant or subtenant within the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory Building or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Project;
Appears in 2 contracts
Sources: Office Lease (Zoom Video Communications, Inc.), Office Lease (Zoom Video Communications, Inc.)
Assignment and Subletting. (a) Tenant Sub-Subtenant shall not (voluntarilynot, by operation of law or otherwise) , assign, transfersell, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease Sub-Sublease or any interest therein, and shall not or sublet any portion of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Magma Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, Sub-Sublandlord (which consent will shall not be unreasonably withheld, conditioned or delayed delayed), SRE, and Prime Landlord in each instance. Sub-Sublandlord will not consent to an assignment or sublet to any entity controlling, controlled by or otherwise legally affiliated to the Sub-Subtenant as long as the entity has equal or greater credit than Sub-Subtenant as of the Effective Date, and the assignment or sublet complies with this Sub-Sublease and the Prime Lease.
(b) If this Sub-Sublease shall be withheld assigned or if the Magma Premises or any portion thereof shall be sublet or occupied by any person(s) other than the original Sub-Subtenant named herein, then Sub-Sublandlord may collect rent from any such assignee, Sub-Subtenant or occupant, and apply the net amounts collected to Rent payable pursuant to this Sub-Sublease, but no such assignment, occupancy or collection shall be deemed a waiver of any of the provisions of this Section, an acceptance of the assignee, subtenant Sub-Subtenant or transferee is reputableoccupant as Sub-Subtenant hereunder, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenantany person from the further performance by such person of the obligations of Sub-Subtenant under this Sub-Sublease. A transfer of control of Sub-Subtenant, but including, without limitation, a transfer of stock or partnership interest, the same merger, consolidation or sale of all or substantially all of the assets of Sub-Subtenant or other corporate or other reorganization of Sub-Subtenant (whether or not Sub-Subtenant shall be taken the surviving entity), shall be deemed an assignment under this Sublease and shall be subject to be a payment on account all the provisions of Tenantthis Section. A The consent by Sub-Sublandlord and Prime Landlord to one any assignment, sublettingmortgage, occupation pledge, encumbrance, transfer or use by any other person subletting shall not be deemed to be constitute a waiver of the necessity for such consent to any subsequent assignment, mortgage, pledge, encumbrance, transfer or subletting. The term “control” means the possession, occupation directly or use by another person. Notwithstanding anything indirectly, of the power to direct or cause the contrary in this Paragraph 13direction of the management and policies of such entity, Tenant may assign or sublet throughout the Premises without the prior written consent ownership of Landlord, to an entity which currently owns more than fifty at least thirty percent (5030%) of the voting stock of Tenant legal and beneficial interest in such entity. No such assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant subletting shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupycause Sub-Subtenant to be released from its obligations under this Sub-Sublease. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a Any proposed assignment or sublease, the form of such assignment or sublease subletting shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms the restrictions regarding assignment and conditions subletting contained in the Prime Lease and the rights of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Prime Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthereunder.
Appears in 2 contracts
Sources: Sub Sublease Agreement, Sub Sublease (Magma Design Automation Inc)
Assignment and Subletting. (a) Tenant shall Neither this Lease not (voluntarilyall or any part of the leasehold interest created hereby shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) assign, transferbe assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant or Tenant's legal representatives or successors in interest and neither the Premises nor any part thereof shall be sublet or be used or occupied for any purpose by anyone other than Tenant, without the prior written consent of Landlord first had and obtained in each instance, which consent shall not be unreasonably withheld or unduly delayed. Tenant agrees that the instrument by which any assignment or subletting is accomplished shall expressly provide that no subtenant or assignee shall have the further right to assign or sublet without Landlord's consent or otherwise permit the space which is the subject of the subletting or assignment to be used by others and that each assignee or subtenant will perform and observe all of the agreements, covenants, conditions and provisions to be performed and observed by Tenant under this Lease as and when performance and observance is due and that Landlord shall have the right to enforce said agreements, covenants, conditions and provisions directly against such assignee or subtenant. Any mortgage, pledge, hypothecate hypothecation, encumbrance or encumber this Lease transfer or any interest thereinsuch assignment, and shall not sublet the Premises or any part thereofsubletting, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy occupation or use without the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Landlord as aforesaid shall be void, and shallvoid and, at the option of Landlord, constitute a default under entitling Landlord to terminate this Lease and give rise to all other remedies available to Landlord for breach of this Lease. For purposes of this Paragraph 13, the following events shall be deemed an assignment of this Lease or a sublease, as appropriate: (i) the issuance of equity interests (whether stock or partnership interests or otherwise) in Tenant or any subtenant or assignee, or any entity controlling any of them, to any person or group of related persons, in a single transaction or a series of related or unrelated transactions, such that, following such issuance, such person or group shall have control of Tenant; or (ii) a transfer of control of Tenant or such subtenant or assignee, or any entity controlling any of them, in a single transaction or a series of related or unrelated transactions (including, without limitations, by consolidation, merger, acquisition or reorganization), except that the transfer of outstanding capital stock or other listed equity interests by persons or parties other than "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, through the "over-the-counter" market or any recognized national or international securities exchange, shall not be included in the determination of whether control has been transferred. "Control" shall mean direct or indirect ownership of not less than 50% of all of the voting stock of such corporation or not less than 50% of all the legal and equitable interests in any other business entity. If this Lease is assigned, whether or not in violation of the terms of this Lease, Landlord may collect rent from the assignee. Acceptance of Rent If the Premises or any part thereof is sublet or is used or occupied by Landlord from anyone anybody other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, Landlord may, after an event of Default by Tenant, collect rent from such subtenant or occupant without having to share "excess rent" as provided in Paragraph 13(c), but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns no more than fifty percent (50%) of such "excess rent" shall be deemed to offset Landlord's damages, except to the voting stock extent Tenant's Monthly Rent and additional rent is being paid by said subtenant. In either event, Landlord may apply the next amount collected to the rents herein reserved. The consent by Landlord to an assignment, transfer, encumbering or subletting pursuant to any provision of this Lease shall not relieve Tenant or which Tenant owns greater than fifty percent (50%) any assignee or subtenant from obtaining the express written consent of all classes of stock (Landlord to any other or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or further assignment, the duration transfer, encumbering or subletting. Neither any assignment of the term of this Lease or any proposed subleaseinterest created hereby, and the amount of space nor any proposed subtenant will occupy. In additionsubletting, Tenant shall provide detailed information regarding the proposed subtenant’s occupancy or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant, nor any application of any such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
rent as provided in this subparagraph (ca) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory deemed a waiver of any of the provisions of this subparagraph (a) or relieve, impair, release or discharge Tenant of its obligation fully to Landlord and shall (i) incorporate perform the terms of this Lease in its entirety on Tenant's part to be performed, and be subject to its terms, (ii) provide that Tenant shall remain fully and primarily liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Lease (Montgomery Realty Group Inc), Lease (Montgomery Realty Group Inc)
Assignment and Subletting. (a) Tenant 12.1 Except as otherwise set forth in this Article 12, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate encumber, or encumber otherwise transfer this Lease or any interest thereinLease, and shall not sublet nor underlet, nor suffer, nor permit the Premises or any part thereofthereof to be used or occupied by others (whether for desk space, mailing privileges or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofotherwise), without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will shall not be unreasonably withheld, conditioned or delayed and will not delayed. If this Lease be withheld assigned, or if the Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant undertenant or transferee is reputableoccupant, has equal and apply the net amount collected to the rent herein reserved, and after Tenant shall have defaulted in respect of any of its obligations under this Lease, Tenant shall hold any amounts it receives from any undertenant or better credit than occupant in constructive trust for payment of Tenant’s obligations hereunder; but no assignment, underletting, occupancy or collection shall be deemed a waiver of the provisions hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant and from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or underletting shall not in any guarantor way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or underletting. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. Any assignment, sublease, mortgage, pledge, encumbrance or transfer in contravention of the provisions of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) Article 12 shall be void.
12.2 If Tenant shall at any time or times during the Term desire to assign this Lease or sublet all or substantially all of the Premises for all or substantially all of the remainder of the Term and Landlord’s consent thereto is required under this Article 12, Tenant shall give written notice thereof to Landlord (the “Proposal Notice”), which notice shall be accompanied by (i) a term sheet setting forth the essential terms and conditions of the proposed assignment or sublease, including but not limited to the effective or commencement date thereof, which shall be not less than thirty (30) nor more than one hundred eighty (180) days after the giving of such notice, (ii) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (iii) current financial information with respect to the proposed assignee or subtenant, and shall(iv) an agreement by Tenant to indemnify Landlord against liability resulting from any claims that may be made against Landlord by the proposed assignee or sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease. The Proposal Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (x) sublease such space (hereinafter called the “Leaseback Space”) from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or part of the Premises), or (y) terminate this Lease (if the proposed transaction is an assignment or a sublease of all or substantially all of the Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after the aforesaid notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Provided that Tenant is not in default, if Landlord fails to respond to Tenant’s Proposal Notice within thirty (30) days from receipt, Landlord shall be deemed to have granted its consent to the proposed assignment or sublease described therein, provided, however, that Tenant’s Proposal Notice shall state in bold capital letters on the top of the first page: “FAILURE TO RESPOND TO THIS NOTICE WITHIN THIRTY DAYS WILL RESULT IN LANDLORD’S DEEMED CONSENT TO THE PROPOSED ASSIGNMENT/SUBLEASE DESCRIBED HEREIN,” and, provided, further that Landlord’s consent shall not be deemed given in any case where the sublease/assignment fails to comply in any material respect with the provisions of this Article 12.
12.3 If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all or substantially all of Landlordthe Premises, constitute a default under then, this Lease shall end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the Rent and additional rent due hereunder shall be paid and apportioned to such date.
12.4 If Landlord exercises its option to terminate this Lease pursuant to Section 12.2 of this Article 12 or pursuant to the terms of this Lease. Acceptance , Landlord shall be free to and shall have no liability to Tenant if Landlord should lease the Premises (or any part thereof) to Tenant’s prospective assignee or subtenant.
12.5 If Landlord exercises its option to sublet the Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall be at a rental rate equal to the lesser of (i) the rental rate provided for in the proposed sublease and (ii) the rental rate per rentable square foot of Rent and additional rent then payable pursuant to this Lease, and shall be for the same term as that of the proposed subletting, and such sublease:
(a) shall be expressly subject to all of the covenants, agreements, terms, provisions and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Article 12;
(b) shall be upon the same terms and conditions as those contained in the proposed sublease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Article 12;
(c) shall give the sublessee the unqualified and unrestricted right, without Tenant’s permission, to assign such sublease or any interest therein and/or to sublet the space covered by such sublease or any part or parts of such space and to make any and all changes, alterations and improvements in the space covered by such sublease, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes;
(d) shall provide that any assignee or further subtenant of Landlord or its designee, may, at the election of Landlord, be permitted to make alterations, decorations and installations in such space or any part thereof and shall also provide in substance that any such alterations, decorations and installations in such space therein made by any assignee or subtenant of Landlord or its designee may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease provided that such assignee or subtenant, at its expense, shall repair any damage and injury to such space so sublet caused by such removal, provided, however, that if such sublease is for less than all or substantially all of the Term of the lease, then at the end of the term of such sublease and if requested to do so by Tenant, the Premises shall be restored by Landlord to a condition reasonably suitable for general office purposes; and
(e) shall also provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem suitable or appropriate, (3) Tenant, at Tenant’s expense, shall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such space so sublet by Tenant to Landlord or its designee, (4) Landlord, at Tenant’s expense, to the extent required by the proposed sublease, may make such alterations as may be required or deemed necessary by Landlord to physically separate the subleased space from the balance of the Premises and to comply with any legal or insurance requirements relating to such separation, and (5) that at the expiration of the term of such sublease, Tenant will accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve the premises demised by such sublease in good order and condition.
(i) If Landlord exercises its option to sublet the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Space during the period of time it is so sublet to Landlord.
(ii) Performance by Landlord, or its designee, under a sublease of the Leaseback Space shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the tenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
(iii) Tenant shall have no obligation, at the expiration or earlier termination of the Term, to remove any alteration, installation or improvement made in the Leaseback Space by Landlord (or its designee).
12.7 If Landlord does not exercise either option provided to it pursuant to Section 12.2 and provided that Tenant is not in default of any of Tenant’s obligations under this Lease (after notice and the expiration of any applicable grace period) as of the time of Landlord’s consent, and as of the effective date of the proposed assignment or commencement date of the proposed sublease, Landlord’s written consent to the proposed assignment or sublease shall not be unreasonably withheld or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of Section 12.2 and Landlord shall not have exercised any of its options under said Section 12.2 within the time permitted therefor;
(ii) In Landlord’s reasonable judgment the proposed assignee or subtenant is engaged in a business or activity, and the Premises, or the relevant part thereof, will be used in a manner, which (a) is in keeping with the then standards of the Building, (b) is limited to the use of the Premises for the Permitted Uses, and (c) will not violate any negative covenant as to use contained in any other lease of office space in the Building;
(iii) The proposed assignee or subtenant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with reasonable proof thereof;
(iv) Neither (a) the proposed assignee or sublessee nor (b) any person which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee, is then an occupant of any part of the Building provided Landlord has comparable space available in the Building;
(v) The proposed assignee or sublessee is not a person with whom Landlord is then negotiating to lease space in the Building or a person who has leased or negotiated to lease space in the Building during the six (6) month period ending on the date of the proposed assignment or sublet;
(vi) The form of the proposed sublease or instrument of assignment shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 12;
(vii) There shall not be more than two (2) subtenants (including Landlord or its designee) of the Premises;
(viii) The rental and other terms and conditions of the sublease are substantially similar to those contained in the notice furnished to Landlord pursuant to Section 12.2;
(ix) Tenant shall reimburse Landlord on demand for the reasonable out-of-pocket third-party costs (including actual costs incurred by Landlord’s agent) that may be incurred by Landlord in connection with said assignment or sublease, including, without limitation, the costs of making investigations as to the acceptability of the proposed assignee or subtenant, and legal costs incurred in connection with the granting of any requested consent;
(x) Tenant shall not have advertised or publicized in any way the availability of the Premises without prior written notice to and approval by Landlord, which approval shall not be unreasonably withheld, nor shall any advertisement state the name (as distinguished from the address) of the Building or proposed rental rate lower than the rental rate then payable under this Lease; provided, however, that nothing contained herein shall preclude Tenant from entering into a sublease at such a lower rental rate;
(xi) The proposed occupancy shall not increase the office cleaning requirements or impose an extra burden upon services to be supplied by Landlord to Tenant, unless Tenant agrees to pay any extra costs incurred thereby; and
(xii) The proposed subtenant or assignee shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of New York State. Except for any subletting by Tenant to Landlord or its designee pursuant to the provisions of this Article 12, each subletting pursuant to this Section 12.7 shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such subletting to Landlord or any such subletting to any other subtenant and/or acceptance of Rent or additional rent by Landlord from anyone other than any subtenant, Tenant shall not and will remain fully liable for the payment of the Rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be construed as a consent performed and all acts and omissions of any licensee or waiver by Landlord, nor as a release of Tenant, but the same subtenant or anyone claiming under or through any subtenant which shall be taken to be a payment on account in violation of Tenant. A consent to one assignment, subletting, occupation or use by any other person of the obligations of this Lease shall not be deemed to be a violation by Tenant. Tenant further agrees that notwithstanding any such subletting, no other and further subletting of the Premises by Tenant or any person claiming through or under Tenant shall or will be made except upon compliance with and subject to the provisions of this Article 12. If Landlord shall decline to give its consent to any subsequent assignment, subletting, occupation proposed assignment or use by another person. Notwithstanding anything sublease pursuant to the contrary in terms of this Paragraph 13Lease, Tenant may assign or sublet the Premises without the prior written consent if Landlord shall exercise either of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionits options under Section 12.2, Tenant shall provide detailed information regarding indemnify, defend and hold harmless Landlord against and from any and all loss, liability, damages, costs, and expenses (including reasonable counsel fees) resulting from any claims that may be made against Landlord by the proposed subtenant’s assignee or assignee’s financial condition and credit history, relevant business history and experience, together sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant assignment or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider sublease.
12.8 If (i) the relative financial strength, business reputation Landlord fails to exercise either of its options under Section 12.2 and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and (ii) Tenant fails to execute and deliver the form of such assignment or sublease shall be satisfactory to which Landlord and shall consented within ninety (i90) incorporate this Lease in its entirety and be subject to its termsdays after the giving of such consent, (ii) provide that then, Tenant shall remain liable under this Lease, (iii) provide that subtenant will again comply with all terms of the provisions and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which Section 12.2 before assigning this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment subletting all or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess part of the Rent required Premises.
12.9 With respect to be paid by Tenant hereunder. In the absence of any such agreement between Tenant each and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.ever
Appears in 2 contracts
Sources: Lease Agreement (Panacea Acquisition Corp), Lease Agreement (Panacea Acquisition Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarily, voluntarily or by operation of law or otherwiselaw, (1) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet (2) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will shall not be withheld if the assigneeunreasonably as set forth below in this Paragraph 23, subtenant or transferee provided that Tenant is reputable, has equal or better credit than Tenant and any guarantor of not then in Default under this Lease at nor is any event then occurring which with the time giving of notice or the subject transactionpassage of time, and has substantial experience or both, would constitute a Default hereunder. Except in connection with an offering of shares to the operation public on a nationally recognized exchange, a transfer of the Permitted Use. Any assignment or subletting without such consent greater than a fifty percent (50%) interest (whether actual stock, partnership interest, membership interest or deemedotherwise) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same either in one (1) transaction or a series of transactions shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personan assignment under this Lease. Notwithstanding anything to the contrary contained in Paragraph 23(a), Tenant may, subject to Landlord’s prior written consent, but without Landlord’s having any rights pursuant to clause (1) or (2) of Paragraph 23(b) below, and without the payment of any amounts pursuant to this Paragraph 1323, Tenant may assign or sublet the Premises without the or assign this Lease to a Tenant Affiliate, provided that (i) Tenant shall give not less than five (5) business days’ prior written consent notice thereof to Landlord (to the extent such notice is permitted by applicable Law), (ii) Tenant shall continue to be fully obligated under this Lease, (iii) any such assignee or sublessee shall expressly assume and agree to perform all the terms and conditions of Landlordthis Lease to be performed by Tenant (but with respect to a sublease, only with respect to that portion of the Premises that is the subject of the sublease and excluding all rental obligations of Tenant hereunder), and (iv) such Tenant Affiliate has a tangible net worth (determined in accordance with GAAP) equal to or greater than the tangible net worth of Tenant as of the date of the proposed assignment. As used herein, “Tenant Affiliate” means (A) an entity which currently controlling, controlled by or under common control with Tenant, (B) a successor entity related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action, or (C) a purchaser of all or substantially all of Tenant’s assets located in the Premises; and a party shall be deemed to “control” another party for purposes of the definition contained in the aforesaid clause (A) only if the first party owns more than fifty percent (50%) of the voting stock or other beneficial interests of the second party. In addition to the foregoing, any assignee of Tenant or which Tenant owns greater than fifty percent must have a tangible net worth (50%determined in accordance with GAAP) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may besufficient, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesopinion, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with enable it to perform its obligations under the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
Appears in 2 contracts
Sources: Lease Agreement (Cloudflare, Inc.), Lease Agreement (Cloudflare, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfersell, mortgageencumber, pledge, hypothecate pledge or encumber this Lease otherwise transfer all or any interest thereinpart of Tenant's leasehold estate hereunder, and shall not or permit the Premises to be occupied by anyone other than Tenant or Tenant's employees, or sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining obtaining, in each such instance, Landlord's prior written consent. Any such assignment or other transfer or subletting shall be subject in each instance to the written recapture option of Landlord set forth herein. ▇▇▇▇▇▇▇▇'s consent of Landlord, which consent will shall not be unreasonably withheldwithheld for any proposed assignment, conditioned or delayed provided that substantially the same type, class, nature and quality of business, merchandise, services, management and financial soundness of ownership is maintained and will not continue to be withheld if furnished in a manner compatible with the assigneehigh standards contemplated by this Lease and/ provided further, subtenant that none of the covenants, conditions or transferee is reputableobligations imposed upon Tenant by this Lease, has equal nor any of the rights, remedies or better credit than Tenant and any guarantor benefits afforded Landlord by this Lease are thereby impaired or diminished. Consent by Landlord to one or more assignments of this Lease at the time or to one or more sublettings of the subject transaction, and has substantial experience in the operation Premises shall not operate to exhaust Landlord's rights under this Article. The voluntary or other surrender of the Permitted Use. Any assignment this Lease by Tenant or subletting without such consent (whether actual or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute terminate all or any existing subleases or subtenancies, or shall operate as an assignment to Landlord of such subleases or subtenancies. If Tenant is a default under corporation or is an unincorporated association or partnership, the transfer, assignment or hypothecation of any stock or interest in such corporation, association or partnership in the aggregate in excess of forty-nine percent (49%) shall be deemed an assignment within the meaning and provisions of this Article. If Tenant desires at any time to assign this Lease or to sublet the Premises or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's business to be carried on in the Premises; (iii) the terms and provisions of the proposed sublease or assignment; and (iv) such reasonable financial information as Landlord may request concerning the proposed subtenant or assignee. Any request for ▇▇▇▇▇▇▇▇'s approval of a sublease or assignment shall be accompanied with a check in such reasonable amount as Landlord shall advise for the cost of review and/or preparation of any documents relating to such proposed transfer, but in no event less than $250.00. At any time within fifteen (15) days after ▇▇▇▇▇▇▇▇'s receipt of the information specified above, and provided that Landlord approves of the assignee, assignment, or sublet, Landlord may by written notice to Tenant elect to either (i) sublease the Premises or the portion thereof as shall be specified in said notice for its own account upon the same terms as those offered to the proposed subtenant or assignee, as the case may be; or (ii) terminate this LeaseLease as to the portion (including all) of the Premises so proposed to be subleased or assigned with a proportionate abatement in the rent payable hereunder. Acceptance If Landlord does not exercise either of Rent these options within said fifteen-day period, Tenant may thereafter within ninety (90) days after the expiration of said fifteen-day period enter into a valid assignment or sublease of the Premises or portion thereof, upon the terms and conditions described in the information required to be furnished by Tenant to Landlord hereunder, or other terms not less favorable to Tenant, subject, however, to ▇▇▇▇▇▇▇▇'s consent as herein provided. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay the rent and perform all the other obligations to be performed by Tenant hereunder. The acceptance of rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 2 contracts
Sources: Lease Amendment (Universal Technical Institute Inc), Lease Amendment (Universal Technical Institute Inc)
Assignment and Subletting. (a) Tenant shall may not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease nor sublet all or any interest therein, and shall not sublet a portion of the Premises demised premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or permit any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken demised premises to be a payment on account of Tenant. A consent to one assignment, subletting, occupation used or use occupied by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord. Tenant may not mortgage, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant hypothecate, encumber or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)otherwise pledge this Lease.
(b) If Tenant shall provide Landlord with at any time is a copy corporation, the transfer (by one or more transfers) of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date issued and outstanding shares of the proposed sublease or assignment, the duration stock of the term of any proposed subleasesuch corporation, and the amount issuance (on one or more occasions) of space any proposed subtenant will occupy. In additionnew shares of stock of such corporation, Tenant shall provide detailed information regarding be deemed an assignment of this Lease that requires the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes prior written consent of Landlord’s consent to , if, after such transfer or issuance of shares (as the case may be), the prior shareholders own and hold less than 50% of the issued and outstanding shares of such corporation. If Tenant is, at any time, a proposed sublease partnership or assignmentlimited liability company, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthtransfer (by one or more transfers) of any interest in such partnership or limited liability company, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, and/or (ii) the admission of any history that the proposed subtenant new partner or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease partners or assignment would create any nuisance new member or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasemembers, as the case may be, shall be deemed an assignment of this Lease that requires the prior written consent of Landlord, if, after such transfer or admission (as the case may be), the prior partners or members, as the case may be, have less than a 50% interest in such partnership or limited liability company, as the case may be. For purposes of this Lease, the following shall not be deemed an assignment: (1) transfers of shares of the corporation that are transferred to the corporation or to any employees of the corporation (including employees at the time of the execution of this Lease and/or at the time of such conveyance), (2) transfer of the share of the corporation that are transferred to a form satisfactory relative or family member of the transferor(s) of such shares, (3) transfers by operation of law or as part of the estate of the transferor, or (4) transfers pursuant to a public offering which has been approved by the Securities and Exchange Commission or successor organization, provided, however, that in connection with a transfer pursuant to items (1), (2) or (3) above, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ Oakin retain management control of Tenant.
(i) If Tenant shall desire to assign this Lease, or to sublet all or any portion of the demised premises, Tenant shall give notice (“Tenant’s Notice”) to such effect to Landlord, as which notice shall set forth herein. Tenant or shall pay Landlord’s reasonable feesbe accompanied by (1) the names and business addresses of the proposed assignee or subtenant and of the principal shareholders, not members or partners, as the case may be (each referred to exceed One Thousand Dollars ($1,000.00hereinafter as the “Principals”), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required proposed assignee or subtenant, provided that such entity is a non-public company, (2) the rents and other consideration to be paid by Tenant hereunder. In the absence proposed assignee or subtenant and the other principal terms and conditions of any the proposed assignment or subletting, (3) financial statements for the proposed assignee or subtenant and for its Principals for the preceding three (3) years reasonably acceptable to Landlord; (4) current bank and other credit references for the proposed assignee or subtenant and for its Principals; and (5) such agreement between Tenant and its subtenantother information as Landlord shall reasonably require.
(ii) Landlord, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon by notice (“Landlord’s demand. Such profit shall not include any lump-sum payment made Notice”) given to Tenant from its subtenant in consideration of the transfer within twenty (20) days after receipt of Tenant’s businessNotice and all other information required to be furnished by Tenant pursuant to Subsection 50(c)(i), trade namemay elect to: (A) intentionally omitted, inventory(B) intentionally omitted, (C) terminate this Lease (if the proposed transaction is an assignment of this Lease or a sublease of all or substantially all of the demised premises (or a sublease of a portion of the demised premises which, when aggregated with other subleases then in effect, covers all or substantially all of the demised premises) for all or substantially all of the remaining Term), or goodwill: but any amount attributed (D) terminate this Lease with respect to lease assignment on any document concerning the space covered by the proposed sublease (if the proposed transaction (including is a sublease of part of the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory demised premises for all or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubstantially all of the remaining Term).
Appears in 2 contracts
Sources: Loft Lease (Integral Ad Science Holding LLC), Lease Agreement (Integral Ad Science Holding LLC)
Assignment and Subletting. Except as set forth in this Section 29, Tenant agrees for itself and its permitted successors and assigns that it will not (a) Tenant shall not (voluntarily, by operation of law assign or otherwise) assign, otherwise transfer, mortgage, pledge, hypothecate mortgage or otherwise encumber this Lease or any interest therein, and shall not of its rights hereunder; (b) sublet the Premises or any part thereof, thereof or permit the occupancy or use of the Premises or any right part thereof by any person other than Tenant; and/or (c) permit the assignment or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor transfer of this Lease at the time or any of Tenant's rights hereunder by operation of law (each of the subject transaction, and has substantial experience events referred to in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be voidforegoing clauses [a], [b] and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed [c] being hereinafter referred to as a consent or waiver by Landlord"Transfer"), nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance first obtained, which consent shall not be unreasonably denied, delayed, or withheld, and any consent given shall not constitute a consent to any subsequent Transfer. If Tenant is a partnership any change in the makeup of the partnership, whether voluntary or involuntary, which results in an entity which currently owns ownership interest in the partnership of more than fifty percent (50%) being held by parties who were not partners as of the voting stock commencement of this Lease, or the dissolution of the partnership, shall be deemed a Transfer. Any attempt to Transfer without Landlord's consent shall not null and void and shall not confer any rights upon any purported transferee, assignee, mortgagee, sublessee, or occupant. No Transfer, regardless of whether Landlord's consent has been granted or withheld, shall be deemed to release Tenant from any of its obligations hereunder or to alter, impair or release the obligations of any person guaranteeing the obligations of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)hereunder.
(ba) Tenant shall provide Landlord with a copy remain fully liable during the unexpired term of this Lease; (b) any proposed such assignment, sublease or assignment that contains transfer shall be subject to all of the terms, covenants and conditions of this Lease; (c) such assignee, sublessee, or transferee shall expressly assume the obligations of Tenant under the Lease by a document reasonably satisfactory to Landlord; (d) the assignee, sublessee or transferee shall be at least as credit worthy as is Tenant as of the date of this Lease; and (e) the assignee, sublessee or transferee's proposed use of the Premises shall be substantially equivalent to Tenant's use of the Premises. Notwithstanding anything contained in this section, in the event that, at any time during the Term, Tenant desires to transfer this Lease in whole or in part, by operation of law or otherwise, Tenant shall submit to Landlord in writing, in the form and content acceptable to Landlord in Landlord's sole discretion (a) the name and address of the proposed subtenant or assignee, ; (b) a reasonably detailed statement of the anticipated effective date proposed subtentant's or assignee's business; (c) reasonably detailed financial references and information concerning the financial condition of the proposed subtenant or assignee covering such time periods as requested by Landlord; and (d) a copy of the proposed sublease or assignment. Tenant shall deliver to Landlord, the duration of the term of any proposed within thirty (30) days after Landlord's written consent has been received, (a) a duplicate original sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of duly executed by Tenant and the proposed subtenant subtenant, or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies instrument of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseby Tenant, as the case may be, in a form satisfactory to and substance as approved by Landlord and (b) in case of an assignment, as instrument in form and substance as approved by Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease duly executed by the assignee and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it in which such assignee shall agree to assume, observe, perform and to be entitled to the receipt personally bound by, all of one hundred percent (100%) of any profit derived Tenant's obligations under this Lease. Any sums or other economic consideration received by Tenant as a result of such sublease. Such profit subleasing or assignment, however demonstrated under the assignment or sublease which exceed in the aggregate (i) the total sums which Tenant is defined as obligated to pay to Landlord is under this Lease (prorated to reflect obligations allowable to any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required to Premises subleased) plus (ii) any real estate brokerage commissions or fees payable in connection with such assignment or subleasing and provided that Tenant is not in default under any other term or condition of this Lease shall be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Industrial Space Lease (Alpha Technologies Group Inc), Industrial Space Lease (Alpha Technologies Group Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law may sublet or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, lease or any portion thereof, without first obtaining of Tenant's interest herein in accordance with the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor provisions of this Lease at paragraph. In the time event, however, of the subject transactionany assignment, and has substantial experience in the operation subletting or other transfer or encumbrance of the Permitted Use. Any assignment all or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release any portion of Tenant, but the same shall be taken to be a payment on account of Tenant. A 's interest herein whether with or without Landlord's consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary as provided in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionparagraph, Tenant shall provide detailed information regarding remain fully liable for the proposed subtenant’s or assignee’s financial condition payment of all rent and credit history, relevant business history other charges due hereunder and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview for the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee faithful performance of all the terms, conditions, covenants and provisions of this Lease. So long as Tenant is not in default under this Lease, Tenant shall have a one time right to assign or sublet all or a portion of the Promises to any person, firm or corporation without the consent of Landlord provided only that:
1. the use and occupancy by such subtenant or assignee shall not violate any negative covenant contained in any other lease in the Building; and
2. any such subletting or assignment shall be subject to all of the covenants, agreements, terms, provisions and conditions which contained in this Lease requires Tenant to performLease. Thereafter, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment following such subletting or subleaseassignment, as the case may be, Tenant may not sublet or assign all or any portion of its interest in a form satisfactory to this Lease without the written consent of the Landlord first obtained in each case. Landlord, however, so long as set forth hereinTenant is not in default under this Lease, will not unreasonably withhold its consent to such subletting or assignment. For purposes of this paragraph, Landlord shall not be deemed to have unreasonably withheld its consent to such sublease or assignment if:
1. the occupancy by any such proposed subtenant or assignee shall violate any negative covenant in any other lease in the Building;
2. the use or occupancy by any such subtenant or assignee shall be in violation of the Certificate of Occupancy of the Building;
3. the proposed lease is with a tenant with whom Landlord is then negotiating or to whom Landlord has made a written or verbal offer, or with whom Landlord is in contact with respect to renting space in the Building;
4. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), have advertised the proposed rental at a rate less than the rent set forth in this Lease. Tenant shall reimburse Landlord on demand for any legal costs that may be incurred for review of such assignment or sublease and all other materials submitted by Tenant Landlord in connection with the request for Landlord’s granting of any requested consent, whether such cost not to exceed $1,000.00 in connection with any one transaction. Tenant further agrees that notwithstanding any such subletting or not such assignment, no other and further subletting or assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it the Premises shall be entitled made by Tenant to any person except upon compliance with and subject to the receipt provisions of one hundred percent (100%) this article. Anything herein to the contrary notwithstanding, Landlord's consent shall not be required in the event of a sublease or assignment to a corporation with which Tenant is merged or consolidated or to which substantially all of Tenant's assets are transferred or to any profit derived corporation which controls or is controlled by Tenant as a result of such sublease. Such profit or is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profitunder common control with Tenant. Tenant shall deliver all documents pertaining to not, except as otherwise provided above, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer portion of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning 's interest without the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent of Landlord.
Appears in 2 contracts
Sources: Office Lease Agreement (Claires Stores Inc), Office Lease Agreement (BMS Distributing Corp.)
Assignment and Subletting. (a) Tenant shall Without the express prior written consent of Landlord, not (voluntarilyto be unreasonably withheld, conditioned, or delayed, neither Tenant, nor Tenant’s legal representatives or successors in interest by operation of law Laws or otherwise) assign, transfer, mortgage, pledge, hypothecate shall directly or encumber indirectly assign this Lease or any interest therein, and shall not or sublet all or any portion of the Premises, or use or permit the Premises or any part thereofportion thereof to be used, occupied or managed by any right party or privilege appurtenant thereto, parties other than Tenant. Consent to any assignment or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy sublease shall not vitiate or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of waive this Lease at the time of the subject transactionprovision, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) all later assignments and subleases shall likewise be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without made only upon the prior written consent of Landlord. In the event that Tenant shall desire to assign this Lease or sublet the Premises or any portion thereof, then Tenant shall: (i) promptly notify Landlord in writing of such desire, identifying of such assignee or subtenant, and furnishing Landlord with commercially reasonable financial and business information about such proposed assignee or subtenant, (ii) simultaneously pay to Landlord a non-refundable processing fee in the amount of Five Hundred and No/100 ($500.00) Dollars. Upon receipt of a request to assign or sublet as set forth in the immediately preceding sentence, Landlord shall be entitled, at Landlord’s sole reasonable option, to an entity approve or disapprove such assignment or sublease. Any assignment or sublease which currently owns more than fifty percent (50%) of the voting stock of is not consented to by Landlord shall be void ab initio. Tenant shall, upon any assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide subletting, furnish Landlord with a true and complete copy of all assignment or sublease documents, and shall advise Landlord of all rental amounts pursuant to such assignment or sublease. Subtenants or assignees shall not prepay any proposed sublease rental to any party other than Landlord more than one (1) month in advance, and shall become, at Landlord’s option, liable directly to Landlord if Landlord so elects. In the event that this Lease is assigned or assignment sublet, Landlord may, and is hereby empowered, at Landlord’s option, to collect rent directly from the assignee or subtenant; in the event that contains Landlord does so collect rent from such assignee or subtenant, Landlord shall apply the name net amount received by Landlord to the Aggregate Rent payable by Tenant, and address no such receipt of such rent shall be deemed to be: (x) a waiver of the proposed covenant herein against assignment and subletting, (y) an acceptance of the assignee or subtenant as Landlord’s tenant, or (z) a release of Tenant from the obligations of Tenant under this Lease. Notwithstanding anything contained in this Lease to the contrary, no subtenant or assigneeassignee (unless such subtenant or assignee assumed the Lease pursuant to a Permitted Transfer) may exercise, and Tenant shall have no right to exercise, for the anticipated effective date benefit of any such assignee or subtenant, any expansion option, right of first refusal option, renewal or extension option, or similar option or rights under this Lease. No subtenant or assignee shall be entitled to further assign any interest under this Lease, or sublet all or any portion of the proposed Premises without the express prior written consent of Landlord, not to be unreasonably withheld, conditioned, or delayed. In the event that this Lease shall be assigned or the Premises sublet by Tenant at a rental rate, including, without limitation, minimum rent and all other sums payable thereunder, that exceeds the Minimum Rent to be paid to Landlord by Tenant hereunder, and net of all of Tenant’s costs and expenses associated with said sublease or assignment, then and in such event one-half (1/2) of all such excess over the duration Minimum Rent shall be immediately paid to Landlord by Tenant upon receipt by Tenant as additional rent due from Tenant to Landlord. Notwithstanding the foregoing, no Landlord consent shall be required for an assignment of this Lease or a sublet of all or any portion of the term Premises to any subsidiary, affiliate or related company, or to any successor company as a result of any proposed subleasea merger, and the amount consolidation, sale of space any proposed subtenant will occupy. In additionstock or assets, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit historyother similar business reorganization (each, relevant business history and experiencea “Permitted Transfer”), together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it provided each such Permitted Transfer shall be considered reasonable for Landlord subject to consider the following express conditions: (i) no such assignment shall be deemed to release Tenant from continuing liability throughout the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, Lease Term; (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies Tenant’s assignee must expressly assume in a written instrument delivered to and reasonably acceptable by Landlord all of the City obligations of Glendale and the State of Colorado, Tenant under this Lease; and (iii) whether Tenant must provide notice and a representation that the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
above conditions are met to Landlord within thirty (c30) If Landlord consents to a proposed assignment or sublease, the form days of such assignment assignment, sale, or sublease transfer. Landlord shall be satisfactory furnish the appropriate documentation in connection with any such assignment. Tenant shall in all events, including, without limitation, a Permitted Transfer, remain fully liable to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that for all obligations of Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions regardless of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment subletting or sublease and all other materials submitted any consent by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventorythereto, or goodwill: but any amount attributed expansion, renewal, extension, modification or change of, to lease assignment on any document concerning or affecting the transaction (including Lease or the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease Term.
Appears in 2 contracts
Sources: Industrial Lease Agreement (Premier Exhibitions, Inc.), Industrial Lease Agreement (Premier Exhibitions, Inc.)
Assignment and Subletting. Tenant may assign this Lease in its entirety or sublease all or any portion of the Premises without the consent of Landlord to (ai) any entity resulting from a merger or consolidation with Tenant, (ii) any entity succeeding to all or substantially all of the business and assets of Tenant, or (iii) any company or professional corporation or association affiliated with, owned by, or under common corporate control with Tenant shall (each a “Permitted Transferee”); provided, however, that the financial capacity of the Permitted Transferee must be at least equal to that of the Tenant on the date of transfer and the transfer must not (voluntarilybe effected by Tenant as a sham transaction or a means to circumvent the intent of this Section or adversely affect the liability of Tenant hereunder. Except as herein otherwise provided, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate Tenant may not assign or encumber this Lease or any its interest thereinin the Premises arising under this Lease, and shall may not sublet any part or all of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written prior consent of Landlord, which consent Landlord will not be unreasonably withheldwithhold, conditioned or delayed and will not be withheld if delay. For the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time purpose of the subject transactionpreceding sentence, the word “assign” will be defined and deemed to include the sale or other transfer of a controlling percentage (hereafter defined) of capital stock of Tenant other than to an affiliate or subsidiary or the sale of at least fifty-one percent (51%) of the value of the assets of Tenant. The phrase “controlling percentage” means the ownership of, and has substantial experience in the operation right to vote, stock possessing at least fifty-one percent (51%) of the Permitted Use. Any assignment total combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to vote for the election of directors, or subletting without such consent (whether lesser percentage as is required to provide actual or deemed) shall be void, and shall, at control over the option affairs of Landlord, constitute a default under the terms of this Leasecorporation. Acceptance of Rent by Landlord after any non-permitted assignment will not constitute approval thereof by Landlord. Notwithstanding any contrary provision contained herein, in no event will any assignment by Tenant of all or any interest in this Lease or any subletting of all or any part of the Premises result in Tenant being released from anyone other than Tenant shall its obligations hereunder. In no event will this Lease be assignable by operation of any law except as provided herein, and Tenant’s rights hereunder may not become, and will not be construed listed by Tenant as a consent an asset under any bankruptcy, insolvency or waiver by Landlordreorganization proceedings. Tenant is not, nor as a release of Tenantmay not become, but the same shall be taken and will never represent itself to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent an agent of Landlord, and Tenant acknowledges that Landlord’s title is paramount, and that it can do nothing to an entity which currently owns more than fifty affect or impair Landlord’s title. If this Lease will be assigned or the Premises or any portion thereof sublet by Tenant at a rental that exceeds the rentals to be paid to Landlord hereunder, then sixty-five percent (5065%) of such excess (after reduction for any expenses incurred by Tenant in conjunction with such assignment or subletting) will be due to the voting stock Landlord, upon actual receipt by Tenant. If Tenant desires to enter into any sublease of all or any portion of the Premises or assign its interest in this Lease, Landlord will have the option to exclude from the Premises the space proposed to be sublet by Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (if an assignment is proposed, the entire Premises. Such exclusion or all classes of partnership or membership interest).
(b) Tenant shall provide recapture by Landlord with a copy of any proposed sublease or assignment that contains the name and address will be effective as of the proposed subtenant or assignee, the anticipated effective commencement date of the sublease or assignment. Landlord may exercise said option by giving Tenant written notice within ten (10) business days after receipt by Landlord of Tenant’s request for consent to the proposed sublease or assignment. If Landlord exercises said option, Tenant will surrender possession of such space to Landlord on the duration effective date of exclusion or recapture of such space and neither party hereto will have any future rights or liabilities with respect to said space under this Lease. Effective as of the term date of exclusion of any proposed subleaseportion of the Premises covered by this Lease pursuant to this paragraph, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthBase Annual Rent will be reduced in the same proportion as the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded bears to the number of square feet of Net Rentable Area contained in the Premises immediately prior to such exclusion, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use Net Rentable Area of the Premises after such sublease or assignment would create any nuisance or violate any federalwill be decreased by the number of square feet of Net Rentable Area contained in the portion of the Premises so excluded, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable for all purposes under this Lease, (iii) provide . Landlord and Tenant acknowledge and agree that subtenant will comply with all the foregoing provisions have been freely negotiated by the parties hereto and that Landlord would not have entered into this Lease without Tenant’s consent to the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinSection.
Appears in 2 contracts
Sources: Lease Agreement (Precision Biosciences Inc), Lease Agreement (Precision Biosciences Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledgepledge or otherwise transfer this Lease, hypothecate or encumber this Lease or any interest therein, either voluntarily, involuntarily, or by operation of law, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants agents and invitees employees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld; however, conditioned provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may sublet the Premises or delayed assign this Lease to any entity which owns fifty percent (50%) or more of Tenant or to any entity fifty percent (50%) or more of which is owned by an entity which also owns fifty percent (50%) or more of Tenant or to an entity fifty percent (50%) or more of which is owned by Tenant (each such entity is referred to herein as an "Affiliate") and will provided Tenant gives Landlord at least ten (10) days' prior written notice thereof, Tenant may assign this Lease in connection with a merger or consolidation of Tenant. If Tenant is a corporation, then a change or changes in the ownership of Tenant, whether voluntarily, involuntarily, or by operation of law, which aggregate(s) fifty percent (50%) or more of total capital stock of Tenant or fifty percent (50%) or more of voting capital stock of Tenant shall be deemed an assignment of this Lease. A consent to one assignment, mortgage, pledge, subletting, occupation, or use by any other person shall not relieve Tenant from any obligation under this Lease and shall not be withheld if the assigneedeemed to be a consent to any subsequent assignment, subtenant mortgage, pledge, subletting, occupation or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Useuse by another person. Any assignment assignment, mortgage, pledge, subletting, occupation or subletting use without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of terminate this Lease. Acceptance Tenant's request for Landlord's consent pursuant to this Section 17 shall be submitted in writing at least twenty (20) days prior to the date Tenant desires to secure such consent. Such request shall be accompanied by all relevant information reasonably necessary for Landlord to consider such request. Any request for Landlord's consent pursuant to this Section 17 shall also be accompanied by a payment to Landlord of Rent $500.00 for the review, evaluation, and/or preparation of any materials or documents. Fifty percent (50%) of any sums or other economic consideration paid to, or paid for the benefit of, Tenant in any calendar month as a result of such subletting (other than a subletting to an Affiliate, and except for the rental or other payments received which are attributable to the amortization of the cost of nonbuilding standard leasehold improvements made to the sublet portion of the Premises at the cost of Tenant) whether denominated rentals under the sublease or otherwise, which exceed in the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease) shall be payable to Landlord on a monthly basis promptly after receipt by Tenant as additional rental under this Lease without affecting or reducing any other obligation of Tenant hereunder. Whether or not Landlord's consent is required or obtained, no subletting or assignment shall release Tenant of Tenant's obligations hereunder or otherwise alter the primary liability of Tenant hereunder. The acceptance of rent or any other sum by Landlord from anyone other than Tenant shall not be construed as a consent any person or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person entity shall not be deemed to be a consent to waiver by Landlord of any subsequent assignment, subletting, occupation or use provision hereof. In the event of default by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock any assignee of Tenant or which any successor of Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy in the performance of any proposed sublease or assignment that contains the name and address of the proposed subtenant terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said assignee or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requiressuccessor. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease subsequent subletting or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience assignments of this Lease by assignees of Tenant and the proposed subtenant without notifying Tenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies successor of the City of Glendale and the State of ColoradoTenant, and (iii) whether the use without obtaining its or their consent thereto and such action shall not relieve Tenant of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable liability under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 2 contracts
Sources: Office Space Lease (Adexa Inc), Office Space Lease (Adexa Inc)
Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Lease or sublet any portion of the Premises (except in the ordinary course of Tenant’s business to occupants of the Facility or their immediate family members using Tenant’s standard form occupancy lease). Any of the foregoing acts without such consent shall be void and shall, at Landlord’s sole option, constitute an Event of Default giving rise to Landlord’s right, among other things, to terminate this Lease. An assignment of this Lease by Tenant shall be deemed to include: (a) Tenant shall not entering into a management or similar agreement relating to the operation or control of any portion of the Premises with any Person other than J▇▇▇▇ ▇▇▇▇▇ Associates, Inc. dba JEA Senior Living or a Person that is an Affiliate of Tenant; (voluntarilyb) any change (voluntary or involuntary, by operation of law or otherwise) assign, including the transfer, mortgageassignment, pledgesale, hypothecate hypothecation or encumber this Lease or other disposition of any equity interest therein, and shall not sublet in Tenant) in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (Person that ultimately exert effective Control over the employees, agents, servants and invitees management of the affairs of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time as of the subject transaction, and has substantial experience in the operation date hereof; provided that any transfers of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute Guarantor’s stock on a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person national stock exchange shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to an assignment of the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns Lease so long as no more than fifty twenty-five percent (5025%) of the voting stock of Tenant Guarantor is held by any Person or which Tenant owns greater related group other than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strengthD▇▇▇▇▇ ▇. ▇▇▇▇ or an entity or entities owned or Controlled by him, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) Saratoga Partners IV, L.P. (“Saratoga”) or an entity or entities owned or Controlled by Saratoga; or (c) the sale or other transfer of all or any history that portion of any certificate of need, bed rights or other similar certificate or license relating to the proposed subtenant Business or anyone has with the liquor licensing agencies Premises. Notwithstanding the foregoing, Tenant may, without Landlord’s prior written consent, assign this Lease or sublet the Premises or any portion thereof (i) pending the issuance to Tenant of a license to operate the Facility pursuant to a sublease in the form approved by Landlord prior to the Effective Date or (ii) to an Affiliate of Tenant or Guarantor if all of the City following are first satisfied: (w) such Affiliate fully assumes Tenant’s obligations hereunder; (x) Tenant remains fully liable hereunder and Guarantor remains fully liable under the Guaranty of Glendale and the State of Colorado, and Lease; (iiiy) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
remains unchanged; and (cz) If Landlord consents to a proposed assignment or sublease, in its reasonable discretion shall have approved the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee content of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred documents for review of such assignment or sublease and all other materials submitted by received an executed counterpart thereof. In no event shall Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of sublet any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required Premises on any basis such that the rental to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantsublessee would be based, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration whole or in part, on either the income or profits derived by the business activities of the transfer of Tenant’s business, trade name, inventorysublessee, or goodwill: but any amount attributed other formula, such that any portion of the sublease rental received by Landlord would fail to lease assignment on qualify as “rents from real property” within the meaning of Section 856(d) of the U.S. Internal Revenue Code, or any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory similar or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor provision thereto.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) Not to assign, transfer, mortgage, pledge, hypothecate mortgage or encumber pledge this Lease or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any interest therein, and shall not sublet part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother rights arising under this Lease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or any right or privilege appurtenant thereto, or allow any other person (permit the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time occupancy of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent Premises by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right to assign this Lease or sublet all or a portion of the Premises at any time without the necessity of obtaining Landlord's consent, to (i) a corporation or other entity which controls, is controlled by or is under common control with Tenant, (ii) a corporation or other entity resulting from a reorganization of or merger with Tenant or (iii) an entity which currently owns more than acquires substantially all of the assets of Tenant. In the event Tenant desires to assign this Lease or sublet any portion or all of the Premises in any instance requiring Landlord's consent, Tenant shall notify Landlord in writing of Tenant's intent to so assign this Lease or sublet the Premises and the proposed effective date of such subletting or assignment, and shall request in such notification that Landlord consent thereto. Landlord may terminate this Lease in the case of any such proposed assignment, or suspend this Lease pro tanto for the period and with respect to the space involved in the case of any such proposed subletting, by giving written notice of termination or suspension to Tenant, with such termination or suspension to be effective as of the effective date of such assignment or subletting. Upon such termination, Tenant shall have no thereafter accruing obligations under this Lease. If Landlord does not so terminate or suspend, Landlord's consent shall not be unreasonably withheld or delayed to an assignment or to a subletting, provided that the assignee or subtenant shall use the Premises only for the Permitted Uses, and further provided, with respect to a subletting, that after such subletting the initial Tenant named herein occupies at least fifty percent (50%) percent of the voting stock Rentable Floor Area of the Premises. Tenant shall, as Additional Rent, reimburse Landlord promptly for Landlord's reasonable legal expenses incurred in connection with any request by Tenant for such consent. No subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder, and no consent to any subletting or which Tenant owns greater than fifty percent (50%) assignment in a particular instance shall be deemed to be a waiver of all classes the obligation to obtain any required written approval of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy in the case of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease other subletting or assignment. If for any assignment or sublease consented to by Landlord hereunder Tenant receives rent or other consideration, the duration of either initially or over the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, in excess of the form rent called for hereunder, or in case of sublease of part, in excess of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn rent fairly allocable to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers part, after appropriate adjustments to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and assure that all other materials submitted by payments called for hereunder are appropriately taken into account and after deduction for reasonable expenses of Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article containedsublease, to pay to Landlord as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent additional rent fifty (10050%) percent of any profit derived by Tenant as a result the excess of each such sublease. Such profit is defined as any amounts payment of rent or other consideration received by Tenant from promptly after its subtenant pursuant receipt. Prior to listing the Premises or any part thereof with any other broker for sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantor assignment, there will be deemed to be no profit. Tenant shall deliver all documents pertaining give Nord▇▇▇▇ ▇▇▇pany, as brokers, an exclusive listing for six (6) months with respect to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, sublease or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinassignment.
Appears in 1 contract
Assignment and Subletting. (a) a. Except as provided in Section 17.c below, Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet have the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant consent shall not be unreasonably withheld or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)delayed.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionb. Except as provided in Section 17.c below, Tenant shall provide detailed information regarding not have the proposed subtenant’s or assignee’s financial condition and credit historyright to assign its interest in this Lease without the prior written consent of Landlord, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. consent by Landlord may require an opportunity be withheld with or without cause.
c. Tenant shall have a right to meet sublet or assign its interests in this lease to the Madera County Workforce Investment Corporation, a California public benefit corporation and interview the proposed subtenant to other non-profit agencies or assignee as well. For purposes of Landlord’s consent governmental agencies.
d. Tenant shall not be relieved from its obligation to a proposed sublease pay Rent or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has otherwise comply with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this LeaseLease by reason of any acceptance of Rent (in whole or in part) by Landlord from any assignee, (iv) provide for assumption subtenant, grantee, or successor in interest of Tenant, or any other person, with or without notice, nor by an assignee reason of all any indulgence, extension of time, or other act or agreement of Landlord with any such assignee, subtenant, grantee, successor in interest of Tenant, or other person. All such payments made to Landlord shall be deemed to have been received by Landlord on account of Rent or other monies due from Tenant. Consent to any such assignment and subletting, or either, shall not operate as a waiver of the termsrequirement of the consent of Landlord to any subsequent assignment and subletting, covenants or either, and conditions which the terms of any such consent shall be binding upon any person holding by, under or through Tenant. No assignment, subletting, or other disposition shall relieve Tenant from its liabilities or obligations hereunder.
e. The voluntary or other surrender of this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, or a mutual cancellation hereof, shall not work a merger, and shall, at the option of Landlord, either terminate all or any existing subleases or subtenancies, or operate as an assignment to Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of or all such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, subleases or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubtenancies.
Appears in 1 contract
Sources: Office Lease
Assignment and Subletting. (a) Except as otherwise provided herein, Tenant shall not (voluntarilydirectly or indirectly, voluntarily or involuntarily, by operation of law or otherwise) , assign, transfersublet, mortgage, pledge, hypothecate or otherwise encumber all or any portion of its interest in this Lease or in the Premises or grant any interest thereinlicense in or suffer any person other than Tenant or its employees, and shall not sublet contractor, invitees or agents to use or occupy the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, thereof without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheldwithheld or delayed. Any such attempted assignment, conditioned subletting, license, mortgage, hypothecation, other encumbrance or delayed other use or occupancy without the consent of Landlord shall be null and will not be withheld if void and of no effect. Any mortgage, hypothecation or encumbrance of all or any portion of Tenant's interest in this Lease or in the assignee, subtenant Premises and any grant of a license or transferee is reputable, has equal or better credit sufferance of any person other than Tenant and or its employees, contractors, invitees or agents to use or occupy the Premises or any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) part thereof shall be void, and shall, at the option of Landlord, constitute a default under the terms deemed to be an "assignment" of this Lease. Acceptance Tenant may, without Landlord's consent and without otherwise being subject to or complying with the provisions of this Paragraph 11, permit occupancy of the Premises by, assign this Lease to, or sublet any portion or all of the Premises to: (i) an entity into which Tenant is merged or consolidated or to an entity to which substantially all of Tenant's assets at the Premises are transferred; or (ii) an entity that controls, is controlled by, or is under common control with Tenant. A transfer described in Paragraph 11 (a)(i) and 11 (a) (ii) is hereinafter referred to as "Permitted Transfer".
(b) No permitted assignment or subletting shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any subletting or assignment. Consent by Landlord to one subletting or assignment shall not be deemed to constitute a consent to any other or subsequent attempted subletting or assignment, subletting, occupation . If Landlord's consent is required and Tenant desires at any time to assign this Lease or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentportion thereof, it shall be considered reasonable for first notify Landlord of its desire to consider (i) the relative financial strength, business reputation do so and operational/management experience of Tenant and shall submit in writing to Landlord all pertinent information relating to the proposed subtenant assignee or assigneesublessee, (ii) any history that all pertinent information relating to the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, and all such financial information as Landlord may reasonably request concerning the form of such proposed assignee or subtenant, but at a minimum the financial information shall include the proposed assignee's profit and loss statements, balance sheets and/or tax returns for the prior two (2) years. Any approved assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be expressly subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all the terms and conditions of this Lease, .
(ivc) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires N/A
(d) Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require acknowledges that it shall be entitled reasonable for Landlord to withhold its consent (except in the event of a Permitted Transfer) to a proposed assignment or sublease in any of the following instances:
(i) N/A
(ii) The intended use of the Premises by the assignee or sublessee is not for the uses permitted in Section 6(a) above;
(iii) The intended use of the Premises by the assignee or sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the Building;
(iv) Occupancy of the Premises by the assignee or sublessee would, in the good faith judgment of Landlord, violate any agreement of record binding upon Landlord, the Building or the Project with regard to the identity of tenants, usage in the Building, or similar matters;
(v) The assignee or sublessee is then negotiating with Landlord or has negotiated with Landlord within the previous six (6) months for space in the Project, or is a current tenant or subtenant within the Building or Project, unless suitable space is not otherwise available in the Project for such proposed assignee or sublessee;
(vi) The identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or reputation of the Building or Project; or
(vii) In the case of a sublease, the subtenant has not acknowledged that the Lease controls over any inconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to such assignment or sublease.
(e) Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant's obligations under this Lease shall at all times during the Lease Term remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant's other obligations under this Lease. Except in the event of a Permitted Transfer, in the event that the Rent due and payable by a sublessee or assignee (or a combination of the rental payable under such sublease or assignment, plus any bonus or other consideration therefor or incident thereto) exceeds the Rent payable under this Lease (after deducting costs of Tenant effecting the sublease or assignment, including reasonably alteration costs, commissions and legal fees), then Tenant shall be bound and obligated to pay Landlord, as additional rent hereunder, one-half of such excess Rent and other excess consideration within ten (10) days following receipt thereof by Tenant.
(f) If this Lease is assigned or if the Premises is subleased (whether in whole or in part), or in the event of one hundred percent (100%) the mortgage, pledge, or hypothecation of Tenant's leasehold interest, or grant of any profit derived concession or license within the Premises, or if the Premises are occupied in whole or in part by anyone other than Tenant, then upon a default by Tenant as a result of hereunder Landlord may collect Rent from the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph, apply the amount collected to the next Rent payable hereunder; and all such sublease. Such profit is defined as any amounts received Rent collected by Tenant shall be held in deposit for Landlord and immediately forwarded to Landlord. No such transaction or collection of Rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions or a release of Tenant from the further performance by Tenant of its subtenant covenants, duties, or obligations hereunder.
(g) Except in the event of a Permitted Transfer, should Tenant request of Landlord the right to assign or sublet, Landlord shall charge Tenant Five Hundred and No/100 Dollars ($500.00) as an administration fee.
(h) Notwithstanding any provision of this Lease to the contrary, in the event this Lease is assigned to any person or entity pursuant to the sublease in excess provisions of the Rent required Bankruptcy Code, any and all monies or other consideration payable or otherwise to be paid by Tenant hereunder. In the absence of any delivered in connection with such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable paid or delivered to Tenant’s business, trade name, inventory or goodwill, and thereforeLandlord, shall be included and remain the exclusive property of Landlord and shall not constitute the property of Tenant or Tenant's estate within the meaning of the Bankruptcy Code. All such money and other consideration not paid or delivered to Landlord shall be held in Tenant’s profits as described hereintrust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall will not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber assign this Lease in whole or any interest therein, and shall not in part nor sublet the Premises all or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Leased Premises without the prior written consent of Landlord, which shall not be unreasonably withheld or delayed. Landlord hereby expressly consents to any assignment or subletting to an entity controlled by Tenant, which currently owns more than fifty percent (50%) controls Tenant, or is under the control of the same entity as controls Tenant. For the purposes of the preceding sentence, "control" means legal voting stock control. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. If the Leased Premises shall be occupied by anybody other than Tenant, Landlord may collect rent from the assignee, under- tenant or occupant and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, under- tenant or occupant as tenant, or a release of Tenant or which from the further performance by Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains covenants on the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience part of Tenant and the proposed subtenant or assignee, (ii) herein contained. Notwithstanding any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain primarily liable under on this LeaseLease and shall not be released from performing any of the terms, (iii) provide that subtenant will comply with all terms covenants and conditions of this Lease, (iv) but Tenant and such assignee, under-tenant or occupant shall thereafter be jointly and severally liable for the full and faithful performance of the obligations of Tenant under this Lease. Any attempted assignment by Tenant without the prior written consent of Landlord shall be void. No assignment or subletting shall provide for assumption a rental payment, or other payment for use and occupancy or utilization, based in whole or in part on the net income or profits derived by any person or entity from the property assigned, subleased, occupied or utilized (other than an assignee amount based upon a fixed percentage of all the terms, covenants and conditions which this Lease requires Tenant to performsales), and (v) include a requirement that any subtenant attorn such purported assignment or subletting based upon such payment shall be void and any amount payable thereunder or any rental amount therefor passed to any person or entity shall not have deducted therefrom any expenses or costs related in any way to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review leasing of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinspace.
Appears in 1 contract
Sources: Lease (Transwitch Corp /De)
Assignment and Subletting. (a) In the event that Tenant desires to assign or mortgage this Lease or sublet all or any part of the Premises (with the term “sublet” being deemed, for purposes of this Paragraph 21, to include Tenant’s grant of a license, concession or other right of occupancy of any portion of the Premises), Tenant shall notify Landlord in writing (a “Proposal Notice”) and shall state in the Proposal Notice the name of the proposed assignee, mortgagee or sublessee and the terms of the proposed assignment, mortgage or sublease. In the Proposal Notice Tenant shall also provide financial information and state the nature and character of the business of the proposed assignee, mortgage or sublessee. Notwithstanding such Proposal Notice to Landlord, Tenant shall not assign or mortgage this Lease or any right hereunder or interest herein, and Tenant shall not sublet the Premises in whole or in part or grant any license, concession or other right of occupancy of any portion of the Premises, without the prior written consent of Landlord (voluntarilywhich, subject to subsections (b) and (c) below, shall not be unreasonably withheld, conditioned or delayed). Except as expressly provided below, any such assignment, mortgage or subletting without Landlord’s consent shall be void and shall, at the sole option of the Landlord, be deemed a breach of this Lease. Notwithstanding any assignment, mortgage or subletting consented to by Landlord, Tenant and each assignee shall at all times remain fully responsible and liable for the payment of the rent herein specified and for compliance with all of Tenant’s other covenants and obligations under this Lease. No consent to any assignment or mortgage of this Lease or any subletting of the Premises shall constitute a waiver of the provisions of this paragraph except as to the specific instance covered thereby. If Tenant is a corporation or partnership, an assignment prohibited by this Paragraph 21 shall be deemed to include one or more sales or transfers, by operation of law or otherwise, or creation of new stock or partnership interests, by which a majority of the voting shares of the corporation or interests in the partnership shall be vested in a party or parties who are not owners of a majority of the voting shares or partnership interests of Tenant as of the date hereof; provided, however, that the foregoing provisions of this sentence shall not be applicable if Tenant’s stock is listed on a recognized security exchange. Any transfer by operation of law shall also constitute an assignment prohibited by this Paragraph 21. Unless Landlord’s withholding of consent is attributable primarily to a malicious intent to injure Tenant (i.e., as opposed to a difference of opinion between Landlord and Tenant), Landlord shall not be liable to Tenant for wrongfully withholding its consent to an assignment or subletting under this Lease and Tenant’s sole remedy on account thereof shall be to enforce specific performance of Landlord’s obligation to consent.
(b) assignLandlord and Tenant hereby agree that the granting of consent by Landlord (i.e., transferif such consent is granted) shall, mortgageat a minimum, pledgebe preconditioned upon the fulfillment of the following requirements of Landlord:
(1) Landlord shall be entitled to review Tenant’s Proposal Notice for at least twenty (20) days after receiving same from Tenant; provided, hypothecate if Landlord should fail to notify Tenant in writing of its decision within such 20-day period, then Landlord shall be deemed to have granted its to consent to the proposed assignment, mortgage or encumber subletting so long as Tenant otherwise complies with the terms of this Paragraph;
(2) Tenant shall remain primarily liable under this Lease;
(3) Any proposed assignee or sublessee shall assume, in a written instrument reasonably acceptable to Landlord, all of the obligations of Tenant hereunder;
(4) No use shall be employed in connection with the Premises other than the Sole Permitted Use set forth in this Lease;
(5) The Premises shall remain intact and shall not be altered in any manner whatsoever unless Tenant and the prospective assignee or sublessee shall pay the entire cost thereof, and Landlord’s prior written approval is obtained pursuant to Paragraph 10 above;
(6) The tangible net worth of the proposed subtenant/assignee must be reasonably sufficient for the obligations under this Lease;
(7) Any use of the Premises permitted hereunder by the proposed sublessee/assignee must not (i) violate or create any potential violation of any laws, nor (ii) violate any other agreements affecting the Premises, the Building or Landlord, nor (iii) increase by more than 5% the density of employees and/or other persons using the Premises from the density maintained by Tenant;
(8) The proposed subtenant/assignee will not create traffic congestion or an unreasonable burden on existing parking or elevators;
(9) Tenant shall pay any and all reasonable attorney’s fees or other costs associated with Landlord’s review and approval of a prospective assignee or sublessee, not to exceed $500.00;
(10) No assignment or sublease shall be to a person or entity with whom Landlord is then negotiating, has negotiated with within the previous six months or currently is a tenant within the Building.
(c) [Intentionally Deleted].
(d) In the event of a sublease approved by Landlord where the monthly rental per square foot of space subleased which is payable by any sublessee to Tenant exceeds the monthly rental per square foot for the same space payable for the same month by Tenant to Landlord, Tenant shall be obligated to pay 50% of (1) all compensation which is allocable to monthly rental, as reasonably determined by Tenant, received by Tenant for a sublease less the costs reasonably incurred by Tenant with unaffiliated third parties in connection with such sublease (i.e., brokerage commissions, tenant finish work and commercially reasonable tenant inducement costs) over (2) the monthly rental allocable to the portion of the Premises covered thereby. If an event of default exists, Landlord, at Landlord’s option, may elect to require that rental payable by any sublessee be paid directly to Landlord and offset Tenant’s rent obligations accordingly.
(e) Notwithstanding Paragraphs 21(a)-(d), Tenant may sublease or assign all or part of its interest in this Lease or any interest therein, and shall not sublet all or part of the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepteda “Permitted Transfer”) to occupy or use the Premises, or any portion thereof, following types of entities (a “Permitted Transferee”) without first obtaining the written consent of Landlord:
(1) an affiliate of Tenant if Tenant represents to Landlord that such entity has the financial ability to perform the obligations of Tenant under this Lease;
(2) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which consent will not be unreasonably withheldor with which Tenant, conditioned or delayed its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and will not be withheld if consolidation of business entities, so long as (A) Tenant’s obligations hereunder are assumed by the assignee, subtenant entity surviving such merger or transferee is reputable, has equal or better credit than Tenant created by such consolidation; and any guarantor of this Lease at (B) the time tangible net worth of the subject transactionsurviving or created entity is not less than the tangible net worth of Tenant immediately prior to such transfer; or
(3) any corporation, and has substantial experience in limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant’s assets if such entity’s tangible net worth after such acquisition is not less than the operation tangible net worth of the Permitted UseTenant immediately prior to such acquisition. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide promptly notify Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupysuch Permitted Transfer. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Leasefor the performance of all of the obligations of Tenant hereunder, (iii) provide that subtenant will or if Tenant no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall comply with all of the terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (assign, sublease, mortgage, pledge, encumber, sell, convey, subject to a security interest, license or otherwise transfer, whether voluntarily, involuntarily, by operation of law or otherwise) assign, transferthe Premises, mortgage, pledge, hypothecate this Sublease or encumber this Lease the term and estate hereby granted or any interest herein or therein, in whole or in part, and shall not sublet neither the Premises or nor any part thereof, thereof will be used or any right occupied or privilege appurtenant thereto, permitted to be used or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent occupied by Landlord from anyone other than Tenant or for any use or purpose other than a use which is permitted hereunder or be offered or advertised for assignment or subletting without, in each instance, having first received the express written consent of Landlord and Prime Landlord, such consent by Landlord not to be unreasonably withheld. The provisions of the foregoing sentence shall apply to a transfer (by one or more transfers) of forty-nine percent (49%) of the common stock of Tenant as if such transfer of the Tenant's stock were an assignment of this Sublease. Whether or not be construed as Prime Landlord or Landlord consents, no assignment, sublease, etc. will release or alter the liability of Tenant to pay rent and perform all of Tenant's other obligations under this Sublease. The acceptance of rent by Landlord from any person other than Tenant is not a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent Consent to one assignment, sublettingsublease, occupation or use by any other person shall etc. will not be deemed to be a consent to any subsequent assignment, sublettingsublease, occupation or use by another personetc. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of If Tenant or which any assignee or sublessee, defaults under this Sublease, Landlord may proceed directly against the Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership said assignee or membership interest).
(b) Tenant shall provide Landlord with a copy of sublessee, without proceeding or exhausting its remedies against the other. After any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed Landlord may consent to a subsequent assignment, sublease, etc. of or amendments to this Sublease, without notifying Tenant or any other person, without obtaining consent thereto, and the amount without relieving Tenant of space any proposed subtenant will occupyits liabilities under this Sublease. In additionAs additional rent, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition reimburse Landlord promptly for reasonable legal and credit history, relevant business history and experience, together other expenses incurred by Landlord in connection with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s requests by Tenant for consent to a proposed assignment or subletting. The provisions of Article 17 of the Prime Lease are hereby made expressly applicable to the Tenant, so that any assignment, sublease or assignment, it other transfer shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its termsthe conditions, (ii) provide that provisions and requirements of Article 17 and Landlord shall have against Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants rights and conditions remedies with respect to any assignment or subletting which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn are afforded to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Prime Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsaid Article 17.
Appears in 1 contract
Sources: Sublease (HPR Inc)
Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Master Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Master Lease or sublet any portion of the Premises except (i) in the ordinary course of Tenant's business to residents or occupants of such Facility or their immediate family members using Tenant's standard form occupancy lease for the State in which the applicable Facility is located (in the form approved by the regulatory agency having jurisdiction thereover), and (ii) for incidental subleases and occupancy agreements to providers of incidental services to residents (such as physical therapists or beauty shops) which (A) do not exceed in the aggregate for any single Facility more than one hundred (100) square feet within such Facility, and (B) with respect to any individual sublease or occupancy agreement, does not exceed one (1) year in duration (including any available renewal or extension terms). Any of the foregoing acts without such consent shall be void and shall, at Landlord's sole option, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Master Lease. An assignment of this Master Lease by Tenant shall be deemed to include: (a) Tenant shall entering into a management or similar agreement relating to the operation or control of any portion of the Premises with a Person that is not an Affiliate of Tenant; (voluntarilyb) any change (voluntary or involuntary, by operation of law or otherwise) assign, including the transfer, mortgageassignment, pledgesale, hypothecate hypothecation or encumber this Lease or other disposition of any equity interest therein, and shall not sublet in Tenant) in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (Person that ultimately exert effective Control over the employees, agents, servants and invitees management of the affairs of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time as of the subject transaction, and has substantial experience date hereof; provided that an initial public offering of Tenant or a change in the operation ownership of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Guarantor shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to an assignment of the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more Master Lease so long as thereafter less than fifty twenty-five percent (5025%) of the voting stock of Tenant or which Tenant owns greater than fifty percent Guarantor, respectively, is held by any Person or related group that did not have such ownership prior thereto; or (50%c) the sale or other transfer of all classes or any portion of stock any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any portion of the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's prior written consent, assign this Master Lease or sublet the Premises or any portion thereof to an Affiliate of Tenant or any Guarantor if all of the following are first satisfied: (or all classes of partnership or membership interest).
w) such Affiliate fully assumes Tenant's obligations hereunder; (bx) Tenant shall provide Landlord with a copy of remains fully liable hereunder and any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider Guarantor remains fully liable under its guaranty; (iy) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the applicable portion of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
remains unchanged; and (cz) If Landlord consents to a proposed assignment or sublease, in its reasonable discretion shall have approved the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee content of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred documents for review of such assignment or sublease and all other materials submitted by received an executed counterpart thereof. In no event shall Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of sublet any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required Premises on any basis such that the rental to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantsublessee would be based, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration whole or in part, on either the income or profits derived by the business activities of the transfer of Tenant’s business, trade name, inventorysublessee, or goodwill: but any amount attributed other formula, such that any portion of the sublease rental received by Landlord would fail to lease assignment on qualify as "rents from real property" within the meaning of Section 856(d) of the U.S. Internal Revenue Code, or any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory similar or goodwill, and therefore, shall be included in Tenant’s profits as described herein.successor provision thereto. -25
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (either voluntarily, or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant appurtent thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld. In no event shall any subtenant, conditioned or delayed and will not be withheld if the assignee, subtenant or other transferee is reputableuse, has equal or better credit be allowed to use, the Premises for any purpose other than Tenant and any guarantor of this Lease at the time of the subject transactionspecific purpose set forth in Article 3 above, and has substantial experience Landlord shall be deemed to have acted reasonably in refusing to consent to any sublease, assignment or transfer involving any change in the operation of purpose for which the Permitted Use. Any assignment Premises are or subletting without such consent (whether actual or deemed) shall will be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenantused. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything Consent to any assignment, subletting, occupation or use shall in no way relieve Tenant of any liability under this Lease and Tenant shall remain fully liable for the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) payment of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains rent under this Lease and the name and address performance of the proposed subtenant terms and provisions of this Lease and Landlord shall not be required to pursue first any remedies for default it may have against any subtenant, assignee or assigneeother transferee. Any assignment or subletting without such consent shall be void, and shall constitute a default under the anticipated effective date terms of the proposed this lease. If Landlord Shall consent to a sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s Landlord reasonable fees, not to exceed One Thousand Dollars ($1,000.00)exceed, incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition processing of documents necessary to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result giving of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinconsent.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate hypothecate, encumber or encumber otherwise transfer this Lease or sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any interest therein, and shall not sublet part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereofother rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, any right transfer of the stock or privilege appurtenant thereto, partnership or allow beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant or any transaction pursuant to which Tenant is merged or consolidated with another entity or pursuant to which all or substantially all of Tenant’s assets are transferred to any other person entity shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the employeessuccessor or purchaser shall have a tangible net worth, agentsafter giving effect to the transaction, servants and invitees of not less than the greater of the net worth of Tenant excepted) to occupy or use named in Section 1.1 as of the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor Date of this Lease at or the time net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the subject transactionnamed Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (1) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and has substantial experience in is not made to circumvent the operation provisions of the Permitted Use. Any assignment or subletting without such consent this Section 6.2.1, (whether actual or deemedII) shall be voidexcept if pursuant to a Merger permitted by clause (i) above, and Tenant shall, at contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the option provisions of this Section 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, constitute a default to assume all of Tenant’s obligations under this Lease and be bound by all of the terms of this Lease. Acceptance , (Ill) in the case of Rent by an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord, not less than ten (10) days in advance of any such assignment, evidence reasonably satisfactory to Landlord from anyone other than Tenant of the Required Net Worth of the successor or purchaser, and (IV) there shall not be construed as a consent or waiver by Default of Tenant at the effective date of such assignment. Tenant shall also be permitted, without the need for Landlord, nor as a release of Tenant’s consent, but the same shall be taken only upon not less than ten (10) days prior notice to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be an entity which currently owns Affiliate. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate. In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not later than sixty (60) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent Premises for a term (50%including extension options) of all classes more than half of stock (the remaining term hereof or all classes of partnership or membership interest).
(b) to exclude from the Premises, for the term of such proposed sublease, the portion thereof to be sublet if the conditions set forth in (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. If Landlord shall provide Landlord with a copy give such notice within such thirty (30) day period, upon the later to occur of any proposed sublease or assignment that contains the name and address of (A) the proposed subtenant or assignee, the anticipated effective date of the commencement of such proposed sublease or assignment, or (B) the duration of date which is thirty (30) days after Landlord’s notice, the term of any proposed subleasethis Lease shall terminate or the Premises shall be reduced to exclude the portion of the Premises intended for subletting, in which case Annual Fixed Rent and the amount of space any proposed subtenant will occupyTenant’s Percentage shall be correspondingly reduced. In additionIf Landlord shall not give such notice, but Tenant shall provide detailed information regarding not enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within one hundred twenty (120) days of the initially proposed subtenant’s or assignee’s financial condition sublease commencement date and credit history, relevant business history and experience, together with shall still desire to enter into any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it the first sentence of this paragraph shall again become applicable. If Landlord shall not elect to terminate the term of this Lease or to exclude from the Premises the area to be considered reasonable sublet pursuant to the preceding paragraph, then Landlord shall not unreasonably condition or withhold its consent to the applicable assignment or sublease, provided that, in addition to any other grounds for withholding of consent, Landlord to consider may withhold its consent if in Landlord’s good faith judgment: (i) the relative proposed assignee or subtenant does not have the financial strength, business reputation and operational/management experience of Tenant and strength to perform its obligations under the proposed subtenant assignment or assignee, sublease; (ii) any history that the business and operations of the proposed assignee or subtenant or anyone has with are not of comparable quality to the liquor licensing agencies business and operations being conducted by the majority of other tenants in the City of Glendale and the State of Colorado, and Building; (iii) whether the proposed assignee or subtenant is a business competitor of Landlord or is an affiliate of a business competitor of Landlord; (iv) the identity of the proposed assignee or subtenant is, or the intended use of any part of the Premises would be, in Landlord’s determination, inconsistent with first-class office space or Landlord’s commitments to other tenants in the Building or any covenants, conditions or restrictions affecting the Property; (v) at the time of the proposed assignment or subleasing Landlord is able to meet the space requirements of Tenant’s proposed assignee or subtenant by leasing available space in the Building to such person or entity and either (a) the proposed assignee or subtenant is a tenant or other occupant of the Building (or is an entity affiliated with any such tenant or occupant), or (b) the proposed assignee or subtenant is a party, or is affiliated with any party, which shall have entered into negotiation with Landlord for space in the Building within the preceding twelve (12) months; (vi) the use of the Premises after or the Building by the proposed assignee or subtenant would increase Operating Costs, require any alterations to the Building to cause the Building to comply with applicable laws, or otherwise cause Landlord to incur any additional cost or expense or (vii) any such sublease or assignment would create shall result in the Premises being occupied by more than two (2) parties (including Tenant) at any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) one time. If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in is assigned or if the Premises or any part thereof are sublet (or occupied by any party other than Tenant and its entirety and be subject to its termsemployees) Landlord may collect the rents from such assignee, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseoccupant, as the case may be, and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Section 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a form satisfactory tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease. Any sublease of all or any portion of the Premises shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subject or subordinate, that other than the payment of Annual Fixed Rent and Additional Rent due pursuant to Sections 4.1, 4.2.1 and 4.2.2 or any obligation relating solely to those portions of the Premises which are not part of the subleased premises, the subtenant shall comply with and be bound by all of the obligations of Tenant hereunder, that unless Landlord waives such prohibition, the subtenant may not enter into any sub-sublease, sublease assignment, license or any other agreement granting any right of occupancy of any portion of the subleased premises; and that Landlord shall be an express beneficiary of any such obligations, and that in the event of termination of this Lease or reentry or dispossession of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that neither Landlord nor any mortgagee of the Property, as holder of a mortgage or as Landlord under this Lease if such mortgagee succeeds to that position, shall (a) be liable for any act or omission of Tenant under such sublease, (b) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, or (c) be bound by any previous modification of such sublease unless consented to by Landlord and such mortgagee or by any previous prepayment of more than one (1) month’s rent, (d) be bound by any covenant of Tenant to undertake or complete any construction of the Premises or any portion thereof, (e) be required to account for any security deposit of the subtenant other than any security deposit actually received by Landlord, as (f) be bound by any obligation to make any payment to such subtenant or grant any credits unless specifically agreed to by Landlord and such mortgagee, (g) be responsible for any monies owing by Tenant to the credit of subtenant or (h) be required to remove any person occupying the Premises or any part thereof; and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. The provisions of this paragraph shall not be deemed a waiver of the provisions set forth hereinin the first paragraph of this Section 6.2.1. Tenant shall pay not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or (ii) under which fifteen percent (15%) or more of the total rent or other compensation received by Tenant is attributable to personal property and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises. No subletting or assignment shall in any way impair the continuing primary liability of the named Tenant set forth in Section 1.1 and any immediate or remote successor in interest, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain Landlord’s written approval in the case of any other subletting or assignment. Tenant shall reimburse Landlord immediately upon demand for its reasonable fees, not attorneys’ fees incurred in connection with documenting Landlord’s consent to exceed One Thousand Dollars any assignment or sublease. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant ($1,000.00by assignment or otherwise), incurred for review and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Section 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises. If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease and all other materials submitted by Tenant in connection with sublease), either initially or over the request for Landlord’s consent, whether or not such term of any assignment or sublease is approved. Notwithstanding anything else in this article contained(other than a Permitted Assignment of a Permitted Sublease), as a condition to Landlord’s written approval of any sublease payable by Tenant, Landlord may require that it shall be entitled such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the receipt of space assigned or sublet, Tenant shall pay one hundred percent (100%) of such excess to Landlord, as Additional Rent, payable monthly at the time for payment of Annual Fixed Rent provided that in computing the amount of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to excess the sublease in excess amortized portion of the Rent required to be following “Transfer Expenses” paid by Tenant hereunder. In in connection with such assignment or sublease may first be deducted from the absence monthly amount of any such agreement between excess: (i) the cost of alterations or improvements made by Tenant to the Premises in order to consummate an assignment or to the portion of Premises that is subleased in order to consummate a sublease, (ii) reasonable brokerage commissions or fees, and its subtenant, there will (iii) reasonable attorneys fees. Any such Transfer Expenses shall be amortized in equal monthly installments over the term of the assignment or sublease and shall be verified by Tenant by written documentation reasonably satisfactory to Landlord within sixty (60) days after the date of delivery of possession to the assignee or sublessee. Nothing in this paragraph shall be deemed to abrogate the provisions of this Section 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be no profit. Tenant shall deliver all documents pertaining deemed a granting of consent to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration assignment of the transfer Lease or sublease of Tenant’s business, trade name, inventory, all or goodwill: but any amount attributed to lease assignment on any document concerning portion of the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinPremises.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not voluntarily assign its interest in this Lease (voluntarilyan "assignment") or sublease or permit occupancy by third parties of all or any part of the Premises (a "sublease"), by operation of law without first obtaining Landlord's prior written consent, which consent shall not be unreasonably withheld or otherwise) assign, transfer, delayed. Tenant shall not under any circumstances mortgage, pledge, hypothecate pledge or otherwise transfer or encumber this Lease or any interest therein, and shall not sublet the Premises (except for an assignment or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) sublease pursuant to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted UseSection 20). Any assignment or subletting sublease without such Landlord's prior written consent (whether actual or deemed) shall be void, voidable at Landlord's election and shall, at the option of Landlord, shall constitute a default under hereunder. For purposes hereof, in the terms event Tenant is a partnership, a withdrawal or change of the partners owning more than a twenty-five percent (25%) interest in the partnership in one or more transfers, or if Tenant is a corporation or limited liability company, any transfer of more than fifty per cent (50%) of its stock or membership interests in one or more transfers, or the transfer by the controlling shareholder or member of so much of its stock or membership interest that it is no longer the controlling shareholder or member, shall constitute a voluntary assignment and shall be subject to the provisions of this Lease. Acceptance Section 20; provided, however, that the provisions of Rent by Landlord from anyone other than Tenant this sentence shall not be construed as apply if Tenant is a consent or waiver by Landlordpublicly held corporation, nor as the shares of stock in which are traded on a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another personpublic exchange. Notwithstanding anything to the contrary in this Paragraph 13contained herein, Tenant may shall have the right without Landlord's prior consent and without being subject to Section 20(e) below, but upon not less than fifteen (15) days prior written notice to Landlord, to assign this Lease or sublet the Premises to any entity (i) controlling, controlled by or having fifty percent (50%) or more common control with Tenant, or (ii) resulting from a merger or consolidation with Tenant or acquiring all of the assets and/or stock of Tenant; provided that any such entity shall have a have and control all assets of Tix 4 Tonight, Inc. and shall assume the obligations and liabilities of Tenant under this Lease (any such assignment or subletting permitted without the prior written consent of Landlord is referred to in this Lease as a “Permitted Transfer” and any such assignee or subtenant under a Permitted Transfer is referred to in this Lease as a “Permitted Transferee”) and no such assignment or sublease shall in any manner release Tenant from its primary liability under this Lease.
(b) No consent to an assignment or sublease shall constitute a further waiver of the provisions of this Section 20. Tenant shall notify Landlord in writing of Tenant's intent to assign or sublease this Lease, the name of the proposed assignee or subtenant, information concerning the financial responsibility of the proposed assignee or subtenant and the economic and other material terms of the proposed assignment or subletting, and Landlord shall, within fifteen (15) days of receipt of such written notice, and the financial responsibility information and such other information as may be requested by Landlord concerning the proposed assignee or subtenant (such request to be made, if at all, within ten (10) days of Tenant's initial request for Landlord's consent and submission of the information set forth above), elect one of the following: (i) consent to such proposed assignment or sublease; (ii) refuse such consent, which refusal shall be on reasonable grounds; or (iii) terminate this Lease, such termination to be effective thirty (30) days after receipt of such notice by Tenant. If Landlord shall exercise its termination right hereunder, Landlord shall have the right to enter into a lease or other occupancy agreement directly with the proposed assignee or subtenant, and Tenant shall have no right to any of the rents or other consideration payable by such proposed assignee or subtenant under such other lease or occupancy agreement, even if such rents and other consideration exceed the rent payable under this Lease by Tenant. Landlord shall have the right to lease the Premises to any other tenant, or not lease the Premises, in its sole discretion. Landlord and Tenant specifically agree that Landlord's right to terminate this Lease under clause (iii) above is a material consideration for Landlord's agreement to enter into this Lease and such right may be exercised in Landlord's sole and absolute discretion and no test of reasonableness shall be applicable thereto.
(c) Landlord and Tenant agree, by way of example and not in limitation as to other reasonable grounds for withholding consent and without in any manner limiting Landlord's rights in the event of a proposed assignment or sublease, that it shall be reasonable under this Lease and under any applicable law for Landlord to withhold its consent to a proposed assignment or subletting should Landlord determine that any of the following apply: (i) the proposed transferee's use of the Premises is inconsistent with the Permitted Use set forth in Section 1(j) of this Lease; (ii) the proposed transferee is of a character or reputation which is not consistent with the quality of the Building or Project; (iii) the space to be subleased is not regular in shape with appropriate means of ingress and egress suitable for normal leasing purposes; (iv) the proposed transferee is a governmental agency or instrumentality thereof or a person or entity (or an affiliate thereof) currently leasing or occupying space within the Project or with whom Landlord is then negotiating for the lease or occupancy of space within the Project; (v) Tenant is in default under this Lease at the time Tenant requests consent to the proposed assignment or sublease; or (vi) the proposed assignment or sublease is likely to result in more than a reasonable and safe number of occupants per floor within the space proposed to be assigned or sublet or is likely to result in insufficient visitor parking for the Building.
(d) Any assignee of Tenant's interest in this Lease (whether or not under an assignment requiring Landlord's consent) hereby agrees that (and at Landlord's option, if Landlord's consent is required for such assignment pursuant to this Lease, it shall be a condition to such assignment that Landlord receive an instrument executed by such assignee and expressly enforceable by Landlord agreeing that) such assignee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant hereunder. Any subtenant of all or any portion of the Premises (whether or not under a subletting requiring Landlord's consent) hereby agrees that (and, at Landlord's option, if Landlord's consent is required for such sublease pursuant to this Lease, it shall be a condition to such sublease that Landlord receive an instrument executed by such subtenant agreeing that) such sublease is subject and subordinate to this Lease and to all mortgages or deeds of trust; that Landlord may enforce the provisions of the sublease, including (following the occurrence of any default by Tenant under this Lease which is not cured within any applicable period for cure pursuant to Section 21 below) collection of rent; that in the event of termination of this Lease for any reason, including, without limitation, a voluntary surrender by Tenant, or in the event of any re-entry or repossession of the Premises by Landlord, Landlord may, at its option, either (i) terminate the sublease, or (ii) take over all of the right, title and interest of Tenant, as sublandlord, under such sublease, in which case such subtenant will attorn to Landlord, but that nevertheless Landlord will not (1) be liable for any previous act or omission of Tenant under such sublease, (2) be subject to any defense or offset previously accrued in favor of the subtenant against Tenant, or (3) be bound by any previous modification of any sublease made without Landlord's written consent, or by any previous prepayment by subtenant of more than one month's rent.
(e) In connection with Landlord's grant of consent to an entity which currently owns more than assignment or sublease as required under the provisions of this Section 20, Tenant shall pay Landlord's reasonable out-of-pocket attorneys' fees from outside the Landlords’ office and processing costs incurred in giving such consent. In the event of any Permitted Transfer, assignment, or sublease, Landlord shall receive as additional rent hereunder fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after Tenant's "Excess Consideration" derived from such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that . If Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant elect to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment assign or sublease, as the case may besublet, in a form satisfactory no event shall Tenant's monetary obligations to Landlord, as set forth hereinin this Lease, be reduced. In the event of a sublease, "Excess Consideration" shall mean all rent, additional rent or other consideration actually received by Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review from such subtenant and/or actually paid by such subtenant on behalf of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease subletting in excess of the Rent required to be paid rent, additional rent and other sums payable by Tenant hereunderunder this Lease during the term of the sublease on a per square foot basis if less than all of the Premises is subleased, less the sum of Tenant's reasonable out-of-pocket costs incurred in connection with such sublease for brokerage commissions, reasonable attorneys' fees, the cost of any alterations or improvements made for the benefit of such subtenant, and/or any free rent period granted to such subtenant. In the absence event of any such agreement between Tenant and its subtenantan assignment, there will be deemed to be no profit. Tenant "Excess Consideration" shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made mean key money, bonus money or other consideration paid by the assignee to Tenant from its subtenant in consideration connection with such assignment, and any payment in excess of the transfer of Tenant’s businessfair market value for services rendered by Tenant to assignee or for assets, trade namefixtures, inventory, equipment, or goodwill: but furniture transferred by Tenant to assignee in connection with such assignment, less the sum of Tenant's reasonable out-of-pocket costs incurred in connection with such assignment for brokerage commissions, reasonable attorneys' fees, the cost of any amount attributed alterations or improvements made for the benefit of such assignee and/or any free rent period granted to lease assignment on any document concerning such assignee. If part of the transaction (including the assignee’s tax return) by assignee Excess Consideration shall be conclusively established as not attributable to Tenant’s businesspayable by the assignee or subtenant other than in cash, trade name, inventory or goodwill, and therefore, then Landlord's share of such non-cash consideration shall be included in Tenant’s profits such form as described hereinis reasonably satisfactory to Landlord.
Appears in 1 contract
Sources: Office Lease (Tix CORP)
Assignment and Subletting. (a) A. Tenant shall not (voluntarily, by operation of law or otherwisei) assign, transfersublet, mortgage, pledge, hypothecate convey or encumber mortgage this Lease or any interest thereinhereunder; (ii) permit to occur or permit to exist any assignment of this Lease, and shall not sublet or any Hen upon Tenant's interest, voluntarily or by operation of law, (iii) subject the Leased Premises or any part thereofthereof to any encumbrance; or (iv) permit the use or occupancy of the Leased Premises by any parties other than Tenant and its employees. The actions described under clauses (i), (ii), (iii) and (iv) in the preceding sentence are sometimes referred to below collectively as "assignment or subletting". Any such action on the part of Tenant shall constitute a breach of this Lease and such action shall automatically be deemed void and of no effect. Landlord's consent to any assignment or subletting shall not constitute a waiver of Landlord's right to withhold its consent to any future assignment or subletting.
B. Except as expressly hereafter set forth below in this Paragraph 16B, no such assignment or subletting and no consent by Landlord to any assignment or subletting or election by Landlord to accept any absolute assignee or subtenant shall release Tenant or any subsequent Tenant from any covenant or obligation under this Lease and Tenant shall continue to be liable as a principal and not as a guarantor or surety, to the same! extent as if no such assignment or subletting had been made; provided, however, Landlord agrees to release Tenant from its obligations under this Lease if a permitted assignee of it has a consolidated net worth equal to or greater than Two Million Eight Hundred Fifty Thousand and No/100 Dollars ($2,850,000.00).
C. If Tenant is a corporation, any transaction or series of transactions (including, without limitation, any dissolution, merger, consolidation or other reorganization of Tenant, or any right issuance, sale, gift, transfer or privilege appurtenant theretoredemption of all or a substantial portion of the capital stock of Tenant, whether voluntary, involuntary or allow by operation of law, any other person (sale or transfer of all or any substantial portion of the employees, agents, servants and invitees assets of Tenant excepted) to occupy or use the PremisesTenant, or any portion thereof, without first obtaining the written consent combination of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionforegoing transactions), and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use voluntary assignment of this Lease by another person. Notwithstanding anything Tenant subject to the contrary provisions of Paragraphs 16A and 16B. Notwithstanding any of the foregoing in this Paragraph 1316C, however, Landlord's consent shall not be required for any merger (under which the surviving corporation owns at least all of the assets of Tenant may assign and is obligated to perform all of Tenant's obligations to Landlord under this Lease or sublet otherwise and to any mortgagee of the Premises Property, or any part thereof) or either of the following, provided that Landlord receives written notice thereof within thirty (30) days of the effective date thereof and all documents reasonable requested by Landlord: (a) any consolidation or reorganization of Tenant, or any sale, gift, redemption or transfer of all of the assets of Tenant, if immediately and continually thereafter all of such assets, which assets shall include, without the prior limitation, this Lease, are owned by an entity and such entity has expressly, in a written consent of document delivered to Landlord, or is clearly deemed by law to an entity which currently owns more than fifty percent have, assumed all obligations (50%then existing and future) of the voting stock of Tenant under this Lease; or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) any one (1) time consolidation or reorganization of Tenant, or any one (1) time sale, gift, redemption or transfer of substantially all of the assets of Tenant, if immediately thereafter at least substantially all of the assets of Tenant, which assets shall include, without limitation, this Lease, are owned by an entity and such entity has expressly, in a written document delivered to Landlord, or is clearly deemed by law to have, assumed all obligations of Tenant shall provide Landlord with under this Lease. If Tenant is a copy partnership, any transaction or series of transactions (including without limitation any withdrawal or admittance of a partner or any change in any partner's interest in Tenant, whether voluntary, involuntary or by operation of law, or any combination of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneeforegoing transactions) resulting in the transfer of control of Tenant, other than by reason of death, shall be deemed to be a voluntary assignment of this Lease by Tenant subject to the anticipated effective date provisions of this Paragraph 16C.
D. In the proposed sublease or event Landlord consents to an assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In additionas consideration for Landlord's consent, Tenant shall provide detailed information regarding pay to Landlord as and when received by Tenant, as Additional Rent, an amount equal to 50% of the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as wellAssignment Profit (hereinafter defined). For purposes of Landlord’s consent this Paragraph 16, the term "Assignment Profit" shall mean an amount equal to all sums and other consideration, including, without limitation, any and all noncash consideration, paid or otherwise provided to Tenant by the assignee for or by reason of any such assignment (including, but not limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property, less, in the case of a proposed sublease sale thereof, the then net unamortized or assignmentundepreciated cost thereof, it shall be considered reasonable for Landlord to consider (ior in the case of rental thereof, less the lease cost of such items, all determined on the basis of sound accounting principles, consistently applied) less the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies total amount of the City of Glendale following, as and the State of Colorado, and (iii) whether the use of the Premises after such sublease when paid or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption otherwise provided by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment assignee or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant independent third parties in connection with such assignment: reasonable brokerage, advertising and attorneys fees, tenant finish costs and concessions, including, without limitation, any and all non-cash consideration (such as the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval provision of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinfurniture).
Appears in 1 contract
Sources: Office Lease (Hagler Bailly Inc)
Assignment and Subletting. (a) Tenant shall not assign or transfer (voluntarilycollectively, “assign”) this Lease or all or any of Tenant’s rights hereunder or interest herein by operation of law or otherwise, or sublet or otherwise license or permit anyone to use or occupy (collectively, “sublet”) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right mortgage, pledge, hypothecate or privilege appurtenant theretootherwise encumber (collectively, or allow any other person (the employees“encumber”) this Lease, agentswithout, servants and invitees of Tenant excepted) to occupy or use the Premisesin each case, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will in the case of an assignment or sublease shall not be unreasonably withheld, conditioned or delayed delayed. Any attempted assignment or encumbrance of this Lease or of all or any of Tenant’s rights hereunder or interest herein, and will not any attempted sublet or permission to use or occupy the Premises or any part thereof, other than in accordance with this Article VII, shall be withheld if the void and of no force or effect and shall constitute an immediate Event of Default hereunder. No assignment, subletting or encumbrance, or Landlord’s consent thereto, or Landlord’s collection or acceptance of rent from any assignee, subtenant or transferee is reputableother party, has equal shall be construed as a waiver or better credit than release of the initial named Tenant (or any prior assignees or Guarantors hereunder) from any of its or their liabilities or obligations under this Lease, and any guarantor all of such parties shall remain jointly and severally primarily liable hereunder, notwithstanding anything to the contrary contained in this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms any guaranty of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant In addition, Landlord’s consent to any proposed assignment, subletting or encumbrance shall not be construed as a consent to relieve Tenant or waiver by any permitted assignee, subtenant or other party from the obligation of obtaining Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a ’s prior written consent to any subsequent assignment, subletting (or sub-subletting, occupation as the case may be) or encumbrance. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant or other occupant of the Premises. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant or other occupant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as either an approval of such occupancy under this Article VII (if Tenant has theretofore failed to comply with the provisions of this Article VII) or an acceptance of such subtenant or other occupant as a tenant. Tenant shall reimburse Landlord for all expenses (including reasonable attorneys’ fees and accounting costs) incurred by Landlord in connection with Tenant’s request to assign or encumber this Lease, or sublet all or any part of the Premises, which amounts shall be paid within ten (10) days after Landlord’s written demand therefor, whether or not Landlord consents thereto. Any assignment, sublease or encumbrance shall be effected on forms approved in advance by Landlord, which approval of the form shall not be unreasonably withheld, conditioned or delayed.
(b) If at any time during the Term Tenant desires to assign this Lease or sublet all or part of the Premises, then Tenant shall notify Landlord at least forty-five (45) days in advance (“Tenant’s Request Notice”) and advise Landlord of: the identity of the proposed assignee, or subtenant and a description of its business; the terms of the proposed assignment or subletting; the commencement date of the proposed assignment or subletting (the “Proposed Transfer Commencement Date”); if, applicable, the area proposed to be sublet (the “Proposed Sublet Space”); the most recent financial statement or other evidence of financial responsibility of such proposed assignee or subtenant; and a certification executed by Tenant and such party stating whether or not any premium or other consideration is being paid for the assignment, or sublease (and, if any premium or other consideration is being paid; stating in reasonable detail the amount and calculation thereof). Provided that Tenant is not in default under any provision of this Lease beyond applicable notice, grace and cure periods, and subject to Landlord’s rights pursuant to Section 7.3 below, Landlord shall not unreasonably withhold its consent to a proposed assignment of this Lease or a proposed subletting of the Premises, by the initial named Tenant hereunder. Without limitation, Landlord may withhold such consent if, in the reasonable exercise of its judgment, it determines that:
(i) the use of the Premises pursuant to such assignment or sublease would not be in compliance with Article VI hereof; or
(ii) the proposed assignee or subtenant is not of a type and quality consistent and compatible with first-class office buildings located in the Geographic Area (and the tenants of such buildings); or
(iii) Landlord is not reasonably satisfied with the financial condition of the proposed assignee under any such assignment or the proposed sublessee under any such sublease; or
(iv) the proposed assignee’s or subtenant’s occupancy will cause an excessive density of traffic or make excessive demands on the services, maintenance or facilities of the Building or the Common Areas; or
(v) the proposed assignee or subtenant is a tenant in the Building at the time of Landlord’s receipt of Tenant’s Request Notice, or a party with whom Landlord or its affiliates has negotiated for the leasing of office space within the Geographic Area during the immediately preceding six (6) months; or
(vi) in the course of seeking an assignee, subtenant or other occupant of its space, Tenant has publicly advertised (or permitted the public advertisement of) a rental rate that is lower than the rental rate then payable by Tenant pursuant to this Lease; or
(vii) in the case of a sublease, more than fifty (50%) percent of the Premises is then occupied, or would after the consummation of the proposed sublet be occupied, by a party(ies) other than the Tenant named herein; or
(viii) it wishes to recapture the space as provided in Section 7.3.
7.2 If Tenant or any Guarantor of this Lease is a partnership, then any event (whether voluntary, involuntary or by operation of law) resulting in a dissolution of Tenant or Guarantor, any withdrawal or change (whether voluntary, involuntary or by operation of law) of any partners owning a controlling interest in Tenant or Guarantor (including each general partner), or any structural or other change having the effect of limiting the liability of the partners, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed a voluntary assignment of this Lease subject to the provisions of this Article VII. If Tenant or Guarantor is a corporation (or a partnership with a corporate general partner), then any event (whether voluntary, involuntary or by operation of law) resulting in a dissolution, merger, consolidation or other reorganization of Tenant or Guarantor (or its respective corporate general partner(s), or the sale or transfer or relinquishment of the interest of shareholders who, as of the date of this Lease, own a controlling interest of the capital stock of Tenant or Guarantor (or its respective corporate general partner(s), however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed a voluntary assignment of this Lease subject to the provisions of this Article VII; provided, however, that the foregoing provision shall not apply to corporations whose stock is traded through a nationally recognized exchange or over-the-counter market. If Tenant or Guarantor is a limited liability company, then any dissolution of Tenant or Guarantor, or a withdrawal or change, whether voluntary, involuntary or by operation of law, of members owning a controlling interest in Tenant or Guarantor, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed a voluntary assignment of this Lease, subject to the provisions of this Article VII. In addition, a transfer of all or substantially all of the assets of Tenant or Guarantor (whether Tenant or Guarantor is a partnership, corporation or other type of entity) either by merger, consolidation, or otherwise (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), or a so-called “lease takeover” agreement (that is, an agreement pursuant to which another personentity agrees to become responsible for all or part of Tenant’s obligations under this Lease without actually entering into this Lease), shall be deemed a voluntary assignment of this Lease, subject to the provisions of this Article VII.
7.3 Landlord shall have the right in its sole and absolute discretion to: (i) terminate this Lease in the case of any proposed assignment of this Lease; or (ii) terminate this Lease either in its entirety or only as it relates to the Proposed Sublet Space in the case of a proposed subletting of at least one-half (1/2) of the Premises; or (iii) to terminate this Lease only as it relates to the Proposed Sublet Space in the case of a proposed subletting of less than one-half (1/2) of the Premises. If Landlord elects to exercise its rights under this Section 7.3, it will send Tenant written notice of such termination within thirty (30) days after Landlord’s receipt of Tenant’s Request Notice. If Landlord exercises its option to terminate this Lease only with respect to the Proposed Sublet Space under either clause (ii) or clause (iii) above, then (a) Tenant shall tender the Proposed Sublet Space to Landlord on the Proposed Transfer Commencement Date in the condition required pursuant to Section 22.3 hereof, at which time such space shall thereafter be deleted from the Premises, and (b) as to that portion of the Premises which is not part of the Proposed Sublet Space, this Lease shall remain in full force and effect, except that Base Rent, Additional Rent, the number of Parking Spaces, and any other items which are determined on a per square foot basis shall (notwithstanding anything contained in this Lease to the contrary) be proportionately reduced, based on the amount of square footage deleted from the Premises in relation to the total square footage in the Premises immediately prior to such termination. If Landlord exercises its option under either clause (i) or clause (ii) above to terminate this Lease in its entirety, then Tenant shall tender the entire Premises to Landlord on the Proposed Transfer Commencement Date in the condition required pursuant to Section 22.3 hereof, at which time the Lease shall terminate. Notwithstanding anything the foregoing provisions of this Section 7.3, Landlord shall not have the right to terminate this Lease (either as to the contrary entire Premises or the Proposed Sublet Space) in the case of an assignment or sublet to any corporation or entity which controls, is controlled by, or is under common control with Tenant.
7.4 If any sublease or assignment requires that the subtenant or assignee pay any amount in excess of the rental and other charges due under this Paragraph 13Lease (except that in the case of a sublease of less than all of the Premises, such rental and other charges shall be pro rated on a per square foot basis prior to such calculation), then whether such excess be in the form of an increased monthly or annual rental, a lump sum payment, payment for the sale, transfer or lease of Tenant’s fixtures, leasehold improvements, furniture and other personal property or services provided by Tenant to a subtenant, or any other form, Tenant may assign or sublet the Premises without the prior written consent of shall pay to Landlord, to an entity which currently owns more than when received by Tenant, fifty percent (50%) of any such excess or other premium payable with respect to the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, after deduction of ordinary and customary transaction costs, including, but not limited to, brokerage costs, costs of alterations to the duration Premises, free rent and reasonable attorneys’ fees. Acceptance by Landlord of any payments due under this Section 7.4 shall not be deemed to constitute approval by Landlord of any sublease or assignment, nor shall such acceptance waive any rights of Landlord hereunder. Landlord shall have the right to inspect and audit Tenant’s books and records relating to any assignment or sublease.
7.5 All restrictions and obligations imposed on Tenant pursuant to this Lease shall be deemed to extend to any assignee, subtenant, licensee, concessionaire or other occupant or transferee, and Tenant shall cause all such parties to comply with such restrictions and obligations. As a condition to the effectiveness of any assignment or subletting hereunder, Tenant shall deliver to Landlord prior to, and as a condition of, the Proposed Transfer Commencement Date (i) in the case of an assignment, a fully-executed assignment and assumption agreement which provides, among other things reasonably required by Landlord, that Tenant remains jointly, severally, and primarily liable hereunder; and (ii) in the case of a sublet, a fully executed sublease which provides, among other things reasonably required by Landlord, that such sublease is; (x) subject and subordinate to all the terms and provisions of this Lease; and (y) subject to the condition that if the Term is terminated or Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise then, at Landlord’s option, in its sole and absolute discretion, the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the then-executory terms of such sublease.
7.6 In the event of any proposed subleaseassignment hereunder (other than an assignment to an affiliate of Tenant or a permitted assignment or sublet pursuant to Section 7.9(b) herein) of any options contained in this Lease with respect to additional term(s), additional space, or otherwise, shall automatically lapse and the amount be of space any proposed subtenant will occupy. In additionno further force or effect, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of unless otherwise expressly set forth in this Lease.
7.7 If Landlord’s consent to a proposed sublease an assignment or assignmentsubletting is given, it and such transaction does not become fully binding upon the parties thereto and effective within six (6) months of the Proposed Transfer Commencement Date for any reason, then Landlord’s consent to such transaction shall be considered reasonable deemed null and void, and Tenant’s compliance with the provisions of Section 7.1 and 7.3 shall again be necessary in the event Tenant desires to assign this Lease or sublease all or any portion of the Premises, even in connection with the same transaction as that initially proposed by Tenant in the Tenant Request Notice (unless the Proposed Transfer Commencement Date for such same transaction was delayed by Force Majeure, in which case such six (6) month period shall be extended only by the number of days of any such delay due to Force Majeure only).
7.8 Tenant hereby indemnifies, defends and holds Landlord and Landlord’s Agents harmless from and against any and all claims, demands, liabilities, causes of action, suits, judgments, damages and expenses (including litigation costs and attorneys’ fees) that may be made against Landlord and/or Landlord’s Agents based on, arising out of, or in any way relating to consider (directly or indirectly, in whole or in part) any assignment or encumbrance (or attempted assignment or encumbrance) of this Lease, or any subletting (or attempted subletting) of any part of the Premises including, without limitation, claims by (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed any assignee or subtenant or assigneeproposed assignee or subtenant, or (ii) any history that the proposed subtenant brokers or anyone has other persons claiming a commission or similar compensation in connection with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, or any termination of this Lease by Landlord pursuant to Section 7.3 above.
7.9 Any provisions of this Article to the form contrary notwithstanding, but subject to the other terms, conditions and provisions contained in said Article:
(a) Tenant shall have the right, without the consent of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions free of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalrecapture right, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay but after Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s businessRequest Notice, trade nameto assign this Lease or sublease all or any part of the Premises to any entity controlling, inventory, controlled by or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by under common control with Tenant; provided that no such assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory further assign this Lease or goodwill, sublease any or all of the Premises and therefore, no such sublessee shall be included in Tenant’s profits as described herein.assign or encumber its sublease or further sublea
Appears in 1 contract
Assignment and Subletting. The terms "Transfer of the Premises" or "Transfer" as used herein shall include any assignment of all or any part of this Lease (a) Tenant shall not (voluntarily, including assignment by operation of law law), subletting of all or otherwise) assignany part of the Premises or transfer of possession, transferor right of possession or contingent right of possession of the Premises including without limitation, concession, mortgage, pledgehypothecation, hypothecate or encumber this Lease or any interest thereinagency, and shall not sublet the Premises or any part thereoffranchise, or any right or privilege appurtenant theretomanagement agreement, or allow to suffer any other person (the employees, agents, agents and servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof. If Tenant is a corporation which is not deemed a public corporation, without first obtaining or is an unincorporated association or partnership, the written consent transfer, assignment or hypothecation of Landlordany stock or interest in such corporation, which consent will not be unreasonably withheld, conditioned association or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience partnership in the operation aggregate in excess of the Permitted Use. Any assignment or subletting without such consent twenty percent (whether actual or deemed20%) shall be void, and shall, at deemed a Transfer of the option of Landlord, constitute a default under the terms of this LeasePremises. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet Transfer the Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld, provided, however, Landlord may arbitrarily withhold consent to an entity a sublease of less than the entire Premises. Any Transfer without such consent shall at the option of the Landlord be void, and/or shall constitute a default under this Lease. In the event of a Transfer, the following shall apply: on a monthly basis, any sums of money, or other economic consideration received by Tenant from the transferee in such month (whether or not for a period longer than one month), including higher rent, bonuses, key money, or the like (after deducting reasonable costs of leasing commissions and tenant improvements directly related to, and spent by Tenant with respect to, the Transfer of the Premises) which currently owns more exceed, in the aggregate, the total sums which Tenant pays Landlord under this Lease in such month, or the prorated portion thereof if the Premises transferred is less than the entire Premises, shall be payable fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than to Landlord and fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed subleaseto Tenant, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it 's share shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience paid with Tenant's payment of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth hereinmonthly rent. Tenant shall pay reimburse Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Assignment and Subletting. (a) Tenant The Lessee shall not assign, mortgage, or encumber this Lease (voluntarily, whether by operation of law or otherwise) assign), transfer, mortgage, pledge, hypothecate or encumber without the prior written consent to the Lessor in each instance. Lessee may assign this Lease without consent of Lessor to one or any interest thereinmore partnerships or corporations of which it shall be a general partner or stockholder, or which are owned and controlled to the extent of 50% or more by Lessee or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be. In the event that Lessee is a corporation, the sale or transfer of more than thirty-five (35%) per cent of its stock shall be deemed an assignment and shall not require Lessor's consent. Lessee may sublet all or portions of the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (for rental periods within the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor term of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlordthe Lessor, to an entity which currently owns more than fifty percent (50%) of provided, however, that the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) Lessee shall remain primarily liable for the payment of all classes rent due Lessor under this Lease and for the performance of stock (all the other terms of this Lease required to be performed by the Lessee. If this Lease is assigned, or all classes of partnership if the Demised Premises or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease part thereof is sublet, or assignment that contains occupied by anybody other than Lessee, Lessor may, after default by the name and address of Lessee, collect rents from the proposed assignee, subtenant or assignee, occupant and apply the anticipated effective date of net amount collected to the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable rent payable by Lessee under this Lease. No such assignment, (iii) provide that subtenant will comply with all terms and conditions subletting, occupancy, or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant, or occupant as tenant, or a release of Lessee from the further performance by Lessee of the covenants in this Lease, (iv) provide for assumption . The consent by the Lessor to an assignee assignment of all the terms, covenants and conditions which mortgage or encumbering of this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will shall not be effective unless and until Tenant delivers construed to Landlord an original, duly executed assignment or sublease, as relieve the case may be, in a form satisfactory Lessee from obtaining the consent of Lessor to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approvedany further assignment. Notwithstanding anything else the foregoing, if Lessee assigns this Lease entirely to one or more corporations of which he shall be a stockholder, then Lessee shall have no further obligation or personal liability except as otherwise provided in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinLease.
Appears in 1 contract
Assignment and Subletting. (a) Section 9.1 Tenant shall covenants not (voluntarily, by operation of law to assign or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber transfer this Lease or any interest therein, and shall not hypothecate or mortgage the same or sublet the Demised Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (thereof without the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned but in the event of any such assignment or delayed and will not be withheld if the assigneetransfer, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time shall remain fully liable to perform all of the subject transactionobligations under this Lease. Any assignment, and has substantial experience in the transfer (including transfers by operation of the Permitted Use. Any assignment law or otherwise), hypothecation, mortgage, or subletting without such written consent shall give Landlord the right to terminate this Lease and to re-enter and repossess the Demised Premises but Landlord's right to damages shall survive. No consent by Landlord to any assignment, transfer, hypothecation, mortgage or subletting on any one occasion shall be deemed a consent to any subsequent assignment, transfer, hypothecation, mortgage or subletting by Tenant or by any successors, assigns, transferees, mortgagees or sublessees of Tenant. The foregoing notwithstanding, Tenant shall have the right, without receiving Landlord's prior written consent, to assign this Lease to an entity with which Tenant shall merge or consolidate, provided such assignee has a net worth not less than that of Tenant and, provided further, such assignee executes an agreement in form and substance satisfactory to Landlord pursuant to which it assumes all of Tenant's unperformed obligations under this Lease, whether arising before or after the date of assignment.
Section 9.2 The cumulative sale, issuance or transfer of any voting capital stock of Tenant, if Tenant be a corporation at the signing of this Lease, which results in a change in the voting control of Tenant, shall be deemed to be an assignment of this Lease within the meaning of this Section 9.
Section 9.3 If at the execution of this Lease, Tenant is a sole proprietorship or a co-partnership, the subsequent cumulative sale of fifty-one percent (51%) or more of its business to another person or entity which would result in a change of the control of Tenant shall be deemed to be an assignment of this Lease within the meaning of this Section 9.
Section 9.4 If at any time or from time to time during the Term, Tenant desires to sublet all or any part of the Demised Premises or to assign this Lease, Tenant shall give notice to Landlord setting forth the proposed subtenant or assignee, the terms of the proposed subletting and the space so proposed to be sublet or the terms of the proposed assignment, as the case may be. Landlord shall have the option, exercisable by notice given to Tenant within twenty (20) days after Tenant's notice is given, (a) if Tenant's request relates to a subletting, either to sublet from Tenant such space at the rental and other terms set forth in Tenant's notice, or, if the proposed subletting is for the entire Demised Premises for the balance of the Term, to terminate this Lease, or (b) if Tenant's request relates to an assignment, either to have this Lease assigned to Landlord or to terminate this Lease. If Landlord does not exercise such option, Tenant shall be free for a period of one hundred eighty (180) days thereafter to sublet such space or to assign this Lease to such third party if and only if Landlord shall consent thereto, which consent shall not be unreasonably withheld, provided that the sublease or assignment shall be on the same terms set forth in the notice given to Landlord and that the rental to such subtenant or assignee shall not be less than the then market rate for the Demised Premises. Under no circumstances shall the Tenant hypothecate or mortgage this Lease.
Section 9.5 In the event Tenant shall so sublet a portion of the Demised Premises, or assign this Lease, all of the sums or other economic consideration received by Tenant as a result of such subletting or assignment whether actual denominated rent or deemedotherwise, under the sublease or assignment, which exceed in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Demised Premises subject to such sublease) shall be void, and shall, at the option payable to Landlord as additional rent under this Lease without affecting or reducing any other obligations of Tenant hereunder.
Section 9.6 Regardless of Landlord's consent, constitute a default under no subletting or assignment shall release Tenant of Tenant's obligations or alter the terms primary liability of this LeaseTenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder. Acceptance The acceptance of Rent rental by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignmentassignment or subletting. In the event of default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms hereof, sublettingLandlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, occupation without notifying Tenant, or use by another person. Notwithstanding anything to any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease.
Section 9.7 In the contrary in event Tenant shall assign this Paragraph 13, Tenant may assign Lease or sublet the Demised Premises without or request the prior written consent of Landlord, Landlord to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant any assignment or which Tenant owns greater than fifty percent (50%) of all classes of stock (subletting or all classes of partnership or membership interest).
(b) if Tenant shall provide request the consent of Landlord with a copy of for any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide act that Tenant shall remain liable under this Leaseproposes to do, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. then Tenant shall pay Landlord’s 's reasonable fees, not to exceed One Thousand Dollars ($1,000.00), attorneys' fees and processing fees incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereintherewith.
Appears in 1 contract
Sources: Office Lease Agreement (Fahnestock Viner Holdings Inc)
Assignment and Subletting. (a) Except as expressly provided below,Tenant shall not (voluntarily, either voluntarily or by operation of law or otherwise) law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of LandlordLandlord first had and obtained, which consent will shall not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactiondelayed, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under this Lease. Tenant may, upon written notice to the contrary in this Paragraph 13Landlord, Tenant may assign or sublet the Premises but without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, transfer (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed by assignment or sublease, the form of such assignment in whole or sublease shall be satisfactory to Landlord and shall (iin part) incorporate this Lease in its entirety and be subject to its termsany parent or affiliate of Tenant or to a wholly owned subsidiary of Tenant, or (ii) provide that Tenant shall remain liable under this Lease, transfer (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment whole or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in part) this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining Lease to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer person or entity acquiring, by asset or stock purchase, merger, consolidation or liquidation, all or substantially all of Tenant’s business's assets or voting stock, trade name, inventory, provided that such person or goodwill: but any amount attributed to lease assignment on any document concerning entity assumes in writing the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinobligations of Tenant under this Lease.
Appears in 1 contract
Sources: Lease Agreement (Vstream Inc /Co)
Assignment and Subletting. (a) The Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate pledge or encumber this Lease. The Tenant shall not assign this Lease to a non-affiliate or sublet or underlet the Premises or any interest thereinpart thereof to a non-affiliate, and shall not sublet or permit any other person or entity other than a non-affiliate to occupy the Premises or any part thereof, without on each occasion first obtaining the written consent thereto of the Landlord, which consent shall not be unreasonably withheld. An assignment within the meaning of this Lease is intended to comprehend not only the voluntary action of Tenant, but also any levy or sale on execution or other legal process against Tenant's goods or other property of the leasehold, and every assignment of assets for the benefit of creditors, and the filing of any petition or order or any right adjudication in bankruptcy or privilege appurtenant theretounder any insolvency, reorganization or allow other voluntary or compulsory procedure, and the calling of a meeting of creditors, and the filing by or against Tenant of any other petition or notice for a composition with creditors, and any assignment by operation of law. For purposes of the foregoing, a transfer, by any person or persons controlling the Tenant on the date hereof, of such control to a person or persons not controlling the Tenant on the date hereof shall be deemed to be an assignment of this Lease. In the event of such a change in control Landlord shall not unreasonably withhold its approval of the applicable transferee provided, however, Landlord shall be entitled to condition to its approval upon receipt of evidence as to the continuing financial capacity and viability of the transferee in a manner and to a degree reasonably satisfactory to Landlord. As used herein the term "affiliate" shall mean and refer to an entity under common control with Tenant but shall not include any entity in which Internet Capital Group or its constituent companies may invest from time to time.
(b) If Tenant proposes to assign this Lease or sublet all or any portion of the Premises to a non-affiliate, Tenant shall, prior to the proposed effective date thereof (the employees"Effective Date"), agentsdeliver to Landlord a copy of the proposed agreement and all ancillary agreements with the proposed assignee or subtenant, servants as applicable. Landlord shall then have all the following rights, any of which Landlord may exercise by written notice to Tenant given within thirty (30) days after Landlord receives the foregoing documents:
(i) With respect to a proposed assignment of this Lease, the right to terminate this Lease on the Effective Date as if it were the scheduled expiration date of the Term (the "Expiration Date");
(ii) With respect to a proposed subletting of the entire Premises, the right to terminate this Lease on the Effective Date as if it were the Expiration Date;
(iii) With respect to a proposed subletting of less than the entire Premises, the right to terminate this Lease as to the portion of the Premises affected by such subletting on the Effective Date, as if it were the Expiration Date, in which case Tenant shall promptly execute and invitees deliver to Landlord an appropriate modification of this Lease in form satisfactory to Landlord in all respects; or
(iv) Landlord may consent to the proposed assignment or sublease on such terms and conditions as Landlord may reasonably require, including without limitation, the execution and delivery to Landlord by the assignee of an assumption of liability agreement in form satisfactory to Landlord, including an assumption by the assignee of all of the obligations of Tenant exceptedand the assignee's ratification of an agreement to be bound by all of the provisions of this Lease or, in the case of a sublease, the execution and delivery by the subtenant of a written agreement with Landlord, in such form and with such terms, covenants and conditions as may be required by Landlord; or
(v) Landlord may withhold its consent to occupy the proposed assignment or sublease, provided, however, that if Landlord declines to exercise one of the options set forth in items (i) through (iii) above, Landlord will not unreasonably withhold its consent so long as the identity, reputation and financial strength of the proposed assignee or subtenant, and the proposed use of the Premises, are reasonably acceptable to Landlord; provided further, however, that Landlord shall in no event be required to consent to any sublease of space for rent and other charges less than those that the sublessor is required to pay or any assignment or subletting to a proposed assignee or subtenant that is (w) a government or any subdivision, agency or instrumentality thereof, (x) a school, college, university or educational institution of any type (whether for profit or non-profit), (y) an employment, recruitment or temporary help, service or agency or (z) another tenant of Landlord in the Building.
(vi) In the event that Landlord does consent to the assignment or subletting, Tenant shall have ninety (90) days from its receipt of Landlord's notice thereof to enter into the proposed sublease or assignment with the prospective subtenant or assignee described in Tenant's notice to Landlord. If such sublease or assignment has not been executed within such time period and with such identified assignee or subtenant, the consent given by Landlord shall be considered to have been withdrawn.
(c) No assignment or sublease, whether with or without the Landlord's consent, and whether or not to an affiliate, shall in any way relieve or release the Tenant from liability for the performance of all terms, covenants and conditions of this Lease.
(d) In the event of any sublease or assignment by Tenant of its interest in the Premises or this Lease or any portion thereof, without first obtaining the written consent of whether or not consented to by Landlord, which consent will not each monthly installment of Fixed Rent payable hereunder with respect to the Premises or the portion thereof subject to such subletting or assignment shall be unreasonably withheldincreased by an amount equal to (i) in the case of any subletting, conditioned or delayed and will not be withheld if the assigneeExcess Rent (defined below) for such portion; and, subtenant or transferee is reputablein the case of any assignment, has equal or better credit than Tenant and any guarantor the Excess Rent payable by the assignee as amortized on a monthly basis over the remaining Term of this Lease with interest at the time of the subject transactionLease Interest Rate (defined at Article 5 hereof). As used herein, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) "Excess Rent" shall be void, and shall, at the option of Landlord, constitute mean a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken sum equal to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock amount by which the rent and other charges or other consideration paid by Tenant by any subtenant or assignee exceeds the pro rata portion, for each month of Tenant such subletting or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address assignment, of the proposed subtenant or assigneeFixed Rent and additional rent for such space then payable for such month by Tenant to Landlord pursuant to the provisions of this Lease in the absence of this subsection (d), less the anticipated effective date portion applicable to such month, when amortized from the dates incurred over the remaining term of the proposed sublease or assignment, of Tenant's cost of improvements made or paid for by Tenant to satisfy the duration needs of the term of any proposed subleasesubtenant, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable legal fees, not to exceed One Thousand Dollars ($1,000.00), leasing commissions and similar capital costs incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsubletting.
Appears in 1 contract
Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Master Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Master Lease or sublet any portion of the Premises except (i) in the ordinary course of Tenant's business to residents or occupants of such Facility or their immediate family members using Tenant's standard form occupancy lease for the State in which the applicable Facility is located (in the form approved by the regulatory agency having jurisdiction thereover), and (ii) for incidental subleases and occupancy agreements to providers of incidental services to residents (such as physical therapists or beauty shops) which (a) do not exceed in the aggregate for any single Facility more than one hundred (100) square feet within such Facility, and (b) with respect to any individual sublease or occupancy agreement, does not exceed one (1) year in duration (including any available renewal or extension terms). Any of the foregoing acts without such consent shall be void and shall, at Landlord's sole option, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Master Lease. An assignment of this Master Lease by Tenant shall be deemed to include: (a) entering into a management or similar agreement relating to the operation or control of any portion of the Premises with a Person that is not an Affiliate of Tenant; (voluntarilyb) any change (voluntary or involuntary, by operation of law or otherwise) assign, including the transfer, mortgageassignment, pledgesale, hypothecate hypothecation or encumber this Lease or other disposition of any equity interest therein, and shall not sublet in Tenant) in the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (Person that ultimately exert effective Control over the employees, agents, servants and invitees management of the affairs of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time as of the subject transaction, and has substantial experience date hereof; provided that an initial public offering of Tenant or a change in the operation ownership of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person Guarantor shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to an assignment of the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more Master Lease so long as thereafter less than fifty percent TWENTY-FIVE PERCENT (5025%) of the voting stock of Tenant or which Tenant owns greater than fifty percent Guarantor, respectively, is held by any Person or related group that did not have such ownership prior thereto; or (50%c) the sale or other transfer of all classes or any portion of stock any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any portion of the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's prior written consent, assign this Master Lease or sublet the Premises or any portion thereof to an Affiliate of Tenant or any Guarantor if all of the following are first satisfied: (or all classes of partnership or membership interest).
w) such Affiliate fully assumes Tenant's obligations hereunder; (bx) Tenant shall provide Landlord with a copy of remains fully liable hereunder and any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider Guarantor remains fully liable under its guaranty; (iy) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the applicable portion of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
remains unchanged; and (cz) If Landlord consents to a proposed assignment or sublease, in its reasonable discretion shall have approved the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee content of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred documents for review of such assignment or sublease and all other materials submitted by received an executed counterpart thereof. In no event shall Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of sublet any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess portion of the Rent required Premises on any basis such that the rental to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantsublessee would be based, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration whole or in part, on either the income or profits derived by the business activities of the transfer of Tenant’s business, trade name, inventorysublessee, or goodwill: but any amount attributed other formula, such that any portion of the sublease rental received by Landlord would fail to lease assignment on qualify as "rents from real property" within the meaning of Section 856(d) of the U.S. Internal Revenue Code, or any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory similar or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor provision thereto.
Appears in 1 contract
Assignment and Subletting. (a) Tenant Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease lease or any interest thereinof its rights or estates hereunder, and shall not sublet the Premises demised premises or any part thereof, or any right or privilege appurtenant theretosuffer, or allow any other person (permit, the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premisesdemised premises, or any portion part thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignmentused or occupied by others, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord in each instance. If this lease be assigned, or if the demised premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant, or occupant, and apply the net amount collected to the rent herein reserved, but no assignment, subletting, occupancy, or collection shall be deemed a waiver of the provisions hereof, the acceptance of the assignee, subtenant, or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. Landlord's consent to an assignment or subletting shall not, in any wise, be construed to relieve Tenant from obtaining Landlord's express written consent to any further assignment or subletting. In no event shall any permitted sublessee assign or encumber its sublease, further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space, or any part thereof, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant be used or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)occupied by others, without Landlord's prior written consent in each instance.
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains As used in this Article, except in the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration definition of the term "Related Entity," the word "CONTROL," (including the derivations of any proposed sublease, and the amount word "CONTROL," such as "CONTROLLING" "CONTROLLED BY" or "UNDER COMMON CONTROL WITH" or words of space any proposed subtenant will occupy. In addition, Tenant like import) shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider mean: (i) ownership of more than 25% of the relative financial strength, business reputation and operational/management experience outstanding voting capital stock of Tenant and a corporation or more than 25% of the proposed subtenant beneficial interests of any other entity or assignee, (ii) any history that the proposed subtenant ability effectively to control or anyone has direct the business decisions of such corporation or entity. The term "RELATED ENTITY" shall mean an entity which controls, is controlled by or is under common control with the liquor licensing agencies Tenant, which for purposes hereof shall mean (x) ownership by Tenant of more than 25% of the City outstanding voting capital stock of Glendale and a corporation or more than 25% of the State beneficial interests of Colorado, any other entity and (iiiy) whether the use of ability to effectively control or direct the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form business decisions of such assignment corporation or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.entity
Appears in 1 contract
Sources: Office Lease (Thestreet Com)
Assignment and Subletting. (a) 3
A. Tenant shall not not, without the prior written consent of Landlord in each instance, (voluntarily, by operation of law or otherwise1) assign, transfer, mortgagemortgage or encumber, pledgeor create or permit any lien upon, hypothecate or encumber this Lease or any interest thereinunder it, and shall not (2) allow to exist or occur any transfer of or lien upon this Lease or the Tenant’s interest herein by operation of law, (3) sublet the Premises or any part thereof, or any right (4) permit the use or privilege appurtenant thereto, or allow any other person (occupancy of the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, Premises or any portion thereof, without first obtaining the written consent of Landlord, which consent will part thereof for any purpose not be unreasonably withheld, conditioned provided for under Section 6 or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant and *1. one hundred fifty percent (150%) of *2. one hundred fifty percent (150%) of *3. ▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇’s employees. In no event shall not this Lease on any interest herein be construed as a consent assigned assignable by voluntary or waiver involuntary bankruptcy proceedings or by Landlordoperation of law or otherwise, nor as a release and in no event shall this Lease or any rights or privileges hereunder be an asset of TenantTenant under any bankruptcy, but insolvency or reorganization proceedings, except to the same shall be taken extent provided by law.
B. Consent by Landlord to be a payment on account of Tenant. A consent to one any assignment, subletting, occupation use, occupancy, transfer or use by any other person encumbrance shall not operate to relieve Tenant from any covenant, liability or obligation hereunder (whether past, present or future), including, without limitation, the obligation to pay Rent, except to the extent, if any, expressly provided for in such consent, no shall such consent be deemed to be a consent to any subsequent assignment, subletting, occupation use, occupancy, transfer or use encumbrance. Tenant shall pay all of Landlord’s reasonable costs, charges and expenses (including, without limitation, reasonable attorney’s fees) incurred in connection with any assignment, subletting, use, occupancy, transfer or encumbrance made or requested by another person. Notwithstanding anything Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its intention from, on and after a stated date (which shall not be less than sixty (60) days after the date of Tenant’s notice) to the contrary in assign this Paragraph 13, Tenant may assign Lease or sublet any part or all of the Premises without for the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) balance or any part of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant Term. Tenant’s notice shall provide Landlord with a copy of any proposed sublease or assignment that contains include the name and address of the proposed subtenant assignee or assigneesubtenant, the anticipated effective date a true and complete copy of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, financial statements for the form proposed assignee or subtenant for the preceding two (2) fiscal years and such additional information as Landlord deems reasonably necessary concerning the financial responsibility business and character of such assignment the proposed assignee or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide subtenant. Upon any request for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will under this Section 14, Landlord shall have the right, to be exercised by giving written notice to Tenant within thirty (30) days after receipt of Tenant’s notice (and any additional information reasonably requested by Landlord), to terminate this Lease with respect to the space described in Tenant’s notice as of the date stated in Tenant’s notice for the commencement of the proposed assignment or sublease. If Tenant’s notice covers all of the Premises and if Landlord exercises its right to terminate this Lease as to the Premises, then the Term of this Lease shall expire and end on the commencement date stated in Tenant’s notice as fully and completely as if that date had been the Termination Date. If, however, Tenant’s notice covers less than all of the Premises, and if Landlord exercises its right to terminate this Lease with respect to such space, then as of the commencement date stated in Tenant’s notice, the Rent reserved herein shall be adjusted on the basis of the number of rentable square feet of the Premises retained by Tenant, such portion of the Premises shall at Tenant’s expense be made a separately demised premises in compliance with all legal requirements and with an appropriate entrance separate from the Premises, and this Lease as so amended shall continue thereafter in full force and effect. If Landlord does not be effective unless and until exercise its right to terminate as aforesaid. Landlord shall notify Tenant delivers within such thirty (30) day period whether Landlord consents to Landlord an original, duly executed the proposed assignment or sublease, as the case may bewhich consent shall not be unreasonably withheld; provided, that in no event shall Landlord be required to consent to any assignment or sublease: (1) to a tenant or occupant, or an Affiliate of a tenant or occupant, in the Project or in another building owned by Landlord or an Affiliate of Landlord (“Affiliate” means a form satisfactory to Landlordperson controlling, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment controlled by or sublease and all other materials submitted by Tenant in connection under common control with the request for designated person). (2) which may violate any restrictions contained in any mortgage, lease or agreement affecting the Project or Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Assignment and Assumption of Leases (Quest Resource Corp)
Assignment and Subletting. (a) 9.1 Tenant shall not (voluntarilyhave the right to assign or pledge this Lease or to sublet, license, or allow any occupancy of, the whole or any part of the Premises, whether voluntarily or by operation of law law, or otherwise) assignto permit the use or occupancy permanently or temporarily, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinof the Premises by anyone other than Tenant, and shall not sublet the Premises make, suffer or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without permit such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, sublettingsubleasing, occupation licensing or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises occupancy without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or denied. Additionally, Landlord may require Tenant timely to supply all information for a potential sublease, assignment, license or occupancy in whole or in part, as it deems, in its sole discretion, to be necessary to make such a decision, and said information and documentation shall include, but not be limited to, that set forth below in this Article 9. In the event Landlord approves an entity which currently owns assignment, sublease, license, or occupancy of the Premises in whole or in part, Landlord may condition such approval on restrictions and limitations for the use or occupancy of the Premises, and said restrictions shall be binding upon any and all assignees, subtenants, licensees, and any and all Persons in possession of the Premises in whole or in part. In the event Tenant desires to sublet, license, or permit such occupancy of, the Premises, or any portion thereof; or assign this Lease, Tenant shall give written notice thereof to Landlord at least sixty (60) days but no more than fifty percent one hundred twenty (50%120) days prior to the proposed commencement date of the voting stock of Tenant or same, which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant notice shall provide Landlord with a copy of any proposed sublease or assignment that contains set forth the name and address of the proposed subtenant or assignee, the anticipated effective date relevant terms of any sublease, assignment, license or occupancy in whole or in part, and copies of financial reports and other relevant financial information of the proposed new or additional occupant of the Premises. No assignment, sublease, license or occupancy of the Premises shall occur without the prior written consent of Landlord as to the form of assignment, sublease or license, which shall not be unreasonably withheld. Any form of sublease or license shall provide that the sublessee or licensee shall comply with all terms of the Lease.
9.2 For any assignment, licensing, subletting or Tenant-allowed occupancy in whole or in part, permitted or otherwise, Tenant shall at all times remain directly, primarily and fully responsible and liable for the duration payment of the term Rent specified in this Lease and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease. Upon the occurrence of an Event of Default, if the Premises or any part of them are then assigned, licensed sublet or occupied in whole or in part by anyone or entity other than Tenant, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option collect directly from such assignee, subtenant, licensee, or occupier in whole or I part of the Premises, all payment, license fee, rent, and all things of value paid or given to and becoming due to Tenant, any Affiliate, transferee, successor or assign, and apply such amounts collected against any sums due to Landlord from Tenant under this Lease, and no such collection shall be construed to constitute a novation or release of Tenant from the further performance of Tenant’s obligations under this Lease.
9.3 In addition to Landlord’s right to approve of any subtenant, licensee, assignee, or occupier of the Premises in whole or in part, Landlord shall have the option, in its sole discretion, in the event of any proposed subletting, licensing, assignment or occupancy, to terminate this Lease, or in the case of a proposed subletting, license or occupancy of less than the entire Premises, to recapture the portion of the Premises sublet, licensed or occupied, as of the date the same is to be or was effective. The option shall be exercised, if at all, by Landlord giving Tenant written notice given by Landlord to Tenant within thirty (30) days following Landlord’s receipt of Tenant’s written notice as required above; however, in the event there is an assignment, sublease, license or permitted occupancy by Tenant without Landlord’s written permission, said act shall be void, and there shall be no time limit within which Landlord must act. If Tenant notifies Landlord, within five (5) days after receipt of Landlord’s termination notice, that Tenant is rescinding its proposed assignment, sublease, or license, the termination notice shall be void and the amount Lease shall continue in full force and effect. If Landlord recaptures under this Section only a portion of space the Premises, the Rent to be paid from time to time during the unexpired Term shall ▇▇▇▇▇ proportionately based on the proportion by which the approximate square footage of the remaining portion of the Premises shall be less than that of the Premises as of the date immediately prior to such recapture. Tenant shall, at Tenant’s own cost and expense, discharge in full any outstanding commission obligation which may be due and owing as a result of any proposed subtenant will occupy. assignment, sublease, or license whether or not the Premises are recaptured pursuant to this Section 9.3 and rented by Landlord to the proposed sub-tenant, assignee, licensee, or occupier identified by Tenant in the Notice.
9.4 In additionthe event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall provide detailed information regarding pay to Landlord as Additional Rent an amount equal to one hundred ten percent (110%) of any Increased Rent (as defined below), less the proposed subtenant’s Costs Component (as defined below), when and as such Increased Rent is received by Tenant. As used in this section, “Increased Rent” shall mean the excess of (i) all Rent and other consideration which Tenant is entitled to receive by reason of any sale, sublease, assignment, license, permitted use or assignee’s financial condition and credit historyoccupancy, relevant business history and experienceor other transfer of this Lease in whole or in part, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview over (ii) the proposed subtenant or assignee as wellRent otherwise payable by Tenant under this Lease at such time. For purposes of Landlord’s consent to a proposed sublease or assignmentthe foregoing, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted consideration received by Tenant in form other than cash shall be valued at its fair market value as determined by Landlord in good faith. The “Costs Component” is the amount which, if paid monthly, would fully amortize on a straight-line basis, over the entire period for which Tenant is to receive Increased Rent, the reasonable costs incurred by Tenant for leasing commissions and tenant improvements in connection with the request for Landlord’s consentsuch sublease, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinother transfer.
Appears in 1 contract
Sources: Lease (1847 Holdings LLC)
Assignment and Subletting. (a) Tenant shall not (voluntarilya) assign (whether directly or indirectly), by operation of law in whole or otherwise) assignin part, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereofLease, or any right (b) mortgage or privilege appurtenant theretopledge the Lease, or allow any other person (the employees, agents, servants and invitees of Tenant exceptedc) to occupy or use sublet the Premises, in whole or any portion thereofin part, without first obtaining (in the case of any or all of (a) through (c) above) the prior written consent of Landlord, which consent will shall not be unreasonably withheldwithheld or delayed. Tenant may, conditioned or delayed and will not be withheld if the assigneehowever, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of assign this Lease at the time or sublease a portion of the subject transactionPremises to a wholly-owned subsidiary, and has substantial experience in the operation or as part of the Permitted Use. Any assignment sale of substantially all the assets or subletting equity interests of Tenant or as part of a merger, without such the prior consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, so long as (a) such assignment is not for the purpose of circumventing the provisions of this Section 8, and (b) Landlord reasonably approves the net worth and credit worthiness of such assignee. Furthermore, the change in less than twenty-five percent (25%) of the membership interests of the Tenant shall not constitute a default under the terms an assignment of this Lease. Acceptance of Rent by Landlord In no event shall any assignment or sublease release Tenant or any guarantor from anyone other than Tenant shall not be construed as a consent any obligation or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenantliability hereunder. A consent to one Any purported assignment, sublettingmortgage, occupation transfer, pledge or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises sublease made without the prior written consent of Landlord shall be absolutely null and void. No assignment of this Lease shall be effective and valid unless and until the assignee executes and delivers to Landlord any and all documentation reasonably required by Landlord in order to evidence assignee’s assumption of all obligations of Tenant hereunder. Regardless of whether or not an assignee or sublessee executes and delivers any documentation to Landlord pursuant to the preceding sentence, any assignee or sublessee shall be deemed to have automatically attorned to Landlord in the event of any termination of this Lease. If this Lease is assigned, or if the Premises (or any part thereof) are sublet or used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord or Agent may (without prejudice to, or waiver of its rights), collect Rent from the assignee, subtenant or occupant. In the event of an assignment of this Lease and the payment of consideration from the assignee to the Tenant in connection therewith, 50% of such net consideration (i.e., consideration remaining after payment of all costs, fees (including broker and attorneys fees) and expenses incurred by Tenant) shall be paid to Landlord. With respect to the allocable portion of the Premises sublet, in the event that the total rent and any other considerations received under any sublease by Tenant is greater than (on a pro rata and proportionate basis) the total Rent required to an entity which currently owns more than be paid, from time to time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant such excess as received from any subtenant and such amount shall provide Landlord with be deemed a copy of any proposed sublease or assignment that contains the name and address component of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous MaterialsAdditional Rent.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.
Appears in 1 contract
Sources: Office Facility Lease (I Trax Inc)
Assignment and Subletting. (a) Tenant A. Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate mortgage or encumber this Lease Lease, nor underlet, or any interest therein, and shall not sublet suffer or permit the Demised Premises or any part thereof, thereof to be used or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofoccupied by others, without first obtaining the prior written consent of LandlordLandlord in each instance, which consent will consent, subject to the provisions of paragraph B of this Article, shall not be unreasonably withheld, conditioned or delayed (as provided in paragraph D of this Article). The direct or indirect transfer of the beneficial or record ownership of (a) a majority of the issued and will not outstanding capital stock of any corporate tenant or subtenant of this Lease or (b) a majority of the total equity or voting interests or rights in any partnership or limited liability company tenant or subtenant or any other form of entity or organization, however accomplished, and whether in a single transaction or in a series of related or unrelated transactions, shall, in each case, be withheld deemed an assignment of this Lease or of such sublease. The merger or consolidation of a tenant or subtenant, whether a corporation, partnership, limited liability company or other form of entity or organization, shall be deemed an assignment of this Lease or of such sublease. If this Lease be assigned, or if the Demised Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant undertenant or transferee is reputableoccupant, has equal and apply the net amount collected to the rent herein reserved, but no assignment, underletting, occupancy or better credit than Tenant and any guarantor of this Lease at the time collection shall be deemed a waiver of the subject transactionprovisions hereof, and has substantial experience in the operation acceptance of the Permitted Use. Any assignment assignee, undertenant or subletting without such consent (whether actual occupant as tenant, or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or underletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or underletting. In no event shall any permitted subtenant assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or occupied by others, without Landlord’s prior written consent in each instance. A modification, amendment or extension of a sublease shall be deemed a sublease. If any lien is filed against the Demised Premises or the Building for brokerage services claimed to have been performed for Tenant, but whether or not actually performed, the same shall be taken to be a payment on account of discharged by Tenant within ten (10) days thereafter, at Tenant. A consent to one assignment’s expense, sublettingby filing the bond permitted by law, occupation or use by otherwise, and paying any other person necessary sums in relation thereto, and Tenant agrees to indemnify Landlord and its agents and hold them harmless from and against any and all claims, losses or liability resulting from such lien for brokerage services rendered. For the purposes of this Article, an “interest” shall not be deemed mean an estate, license, easement, use, profit or other claim with respect to be real property or a consent right to participate, directly or indirectly, through one or more intermediaries, nominees, trustees or agents, in the decision making respecting any subsequent assignment, subletting, occupation entity or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign other organization or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) any of the voting stock profits, losses, dividends, distributions, income, gain, losses or capital of Tenant any entity or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)other organization.
(i) If Tenant desires to assign this Lease or to sublet all or any portion of the Demised Premises (whether or not consent thereto is sought), it shall first submit in writing to Landlord the documents described in paragraph C below, and shall offer in writing, (a) with respect to a prospective assignment, to assign this Lease to Landlord without any payment of moneys or other consideration therefor, or, (b) with respect to a prospective subletting, to sublet to Landlord the portion of the Demised Premises involved (hereinafter referred to as the “Leaseback Area”) for the term specified by Tenant shall provide Landlord with a copy of any in its proposed sublease or assignment that contains or, at Landlord’s option, for the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration balance of the term of any proposed subleasethis Lease less one (1) day, and at the amount lower of space any (x) Tenant’s proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding subrental and (y) at the proposed subtenant’s or assignee’s financial condition same rate of fixed annual rent and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradoadditional rent, and (iii) whether otherwise, and in each case, on the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the same terms, covenants and conditions (including provisions relating to escalation rents), as are contained herein and as are allocable and applicable to the portion of the Demised Premises to be covered by such subletting. The offer shall specify the date when the Leaseback Area will be made available to Landlord, which date shall be in no event earlier than ninety (90) days or later than one hundred eighty (180) days following the acceptance of the offer. If an offer of sublease is made, and if the proposed sublease will result in all or substantially all of the Demised Premises being sublet, then Landlord shall have the option to extend the term of its proposed sublease for the balance of the term of this Lease requires less one (1) day.
(ii) Landlord shall have a period of thirty (30) days from the receipt of such offer (and all documents required under paragraph C below) to either accept or reject the same. If Landlord shall accept such offer (a) Tenant shall then execute and deliver to performLandlord, and (v) include a requirement that any subtenant attorn or to the anyone designated or named by Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord , an original, duly executed assignment or sublease, as the case may be, in either case in a form reasonably satisfactory to Landlord’s counsel; and (b) Landlord accepts such offer, Tenant, on demand, shall pay to Landlord or its managing agent (as Landlord shall elect) an amount equal to the brokerage commissions and any work contribution which would have been incurred by Tenant but for Landlord’s accepting such offer.
(iii) If a sublease with Landlord or its designee is so made it shall expressly:
(a) permit Landlord to make further subleases of all or any part of the Leaseback Area and (at no cost or expense to Tenant) to make and authorize any and all changes, alterations, installations and improvements in such space as necessary or desirable;
(b) provide that Tenant will at all times permit reasonably appropriate means of ingress to and egress from the Leaseback Area;
(c) negate any intention that the estate created under such sublease be merged with any other estate held by either of the parties;
(d) provide that Landlord shall accept the Leaseback Area “as is” except that Landlord, at Tenant’s expense, shall perform all such work and make all such alterations as may be required physically to separate the Leaseback Area from the remainder of the Demised Premises and to permit lawful occupancy;
(e) provide that at the expiration of the term of such sublease Tenant will accept the Leaseback Area in its then existing condition, subject to the obligations of Landlord to make such repairs thereto as may be necessary to preserve the Leaseback Area in good order and condition, ordinary wear and tear excepted; and
(f) provide that Landlord shall indemnify and save Tenant harmless from all obligations under this Lease as to the Leaseback Area during the period of time it is so sublet, except for fixed annual rent and additional rent, if any, due under the within lease, which are in excess of the rents and additional sums due under such sublease.
(iv) Subject to the foregoing, performance by Landlord, or its designee, under a sublease of the Leaseback Area shall be deemed performance by Tenant of any similar obligation under this Lease and any default under any such sublease shall not give rise to a default under a similar obligation contained in this Lease, nor shall Tenant be liable for any default under this Lease or deemed to be in default hereunder if such default is occasioned by or arises from any act or omission of the subtenant under such sublease or is occasioned by or arises from any act or omission of any occupant holding under or pursuant to any such sublease.
C. If Tenant requests Landlord’s consent to a specific assignment or subletting, or in any other circumstance where Tenant is required to provide the information described in this paragraph C, Tenant shall submit in writing to Landlord (i) the name and address of the proposed assignee or subtenant, (ii) a duly executed counterpart of the proposed agreement of assignment or sublease, (iii) reasonably satisfactory information as to the nature and character of the business of the proposed assignee or subtenant, and as to the nature of its proposed use of the space, and (iv) banking, financial or other credit information relating to the proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility and character of the proposed assignee or subtenant.
D. If Landlord shall not have accepted Tenant’s offer, as set forth herein. Tenant shall pay Landlord’s reasonable feesprovided in paragraph B, then Landlord will, subject to paragraph F below, not unreasonably withhold or delay its consent to exceed One Thousand Dollars ($1,000.00), incurred Tenant’s request for review consent to such specific assignment or subletting. Any consent of such Landlord under this Article shall be subject to the terms of this Article and the effectiveness of any assignment or sublease under this Article shall be conditioned upon there being no default by Tenant, beyond any grace period, under any of the terms, covenants and conditions of this Lease at the time that Landlord’s consent to any such subletting or assignment is requested and on the date of the commencement of the term of any proposed sublease or the effective date of any proposed assignment.
E. Tenant understands and agrees that no assignment or subletting shall be effective unless and until Tenant, upon receiving any necessary written consent from Landlord (and unless it was theretofore delivered to Landlord) causes a duly executed copy of the sublease or assignment to be delivered to Landlord within ten (10) days after execution thereof. Any such sublease shall provide that the subtenant shall comply with all other materials submitted applicable terms and conditions of this Lease to be performed by Tenant hereunder. Any such assignment of lease shall contain an assumption by the assignee of all of the terms, covenants and conditions of this Lease to be performed by Tenant.
F. Anything herein contained to the contrary notwithstanding:
(i) Tenant shall not advertise (but may list with brokers) its space for assignment or subletting at a rental rate lower than the then Building rental rate for such space.
(ii) The restrictions contained in connection paragraph A of this Article shall not apply (1) to any transaction consummated by the purchase or sale of stock or partnership or membership interests within the meaning of the Securities Exchange Act of 1934 as amended, and which sale is effected through the “over-the-counter market” or through any recognized stock exchange, or (2) to any public offering or the equivalent.
(iii) No assignment or subletting shall be made:
(a) To any person or entity which shall at that time be a tenant, subtenant or other occupant (or an affiliate thereof) of any part of the Building of which the Demised Premises form a part, or who dealt with Landlord or Landlord’s agent (directly or through a broker) with respect to space in the Building during the six (6) months immediately preceding Tenant’s request for Landlord’s consent;
(b) By the legal representatives of Tenant or by any person to whom Tenant’s interest under this Lease passes by operation of law, whether except in compliance with the provisions of this Article;
(c) To any person or entity for the conduct of a business which is not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to keeping with the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to standards and the sublease in excess general character of the Rent required to be paid by Tenant hereunder. In Building of which the absence of Demised Premises form a part or whose business violates any such then-existing restrictive covenant or use restriction contained in any lease or other agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of affecting the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.Building;
Appears in 1 contract
Sources: Lease Agreement (Shutterstock, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transferencumber, mortgageor otherwise transfer (collectively, pledge, hypothecate “Transfer”) all or encumber any part of its interest in this Lease or any interest therein, and shall not sublet in the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, without obtaining Landlord’s prior written consent as set forth below. Any Transfer or sublease without Landlord’s prior written consent shall be voidable at Landlord’s election and shall constitute a default. Landlord’s Initials Tenant’s Initials
(b) Tenant shall have the right to sublease or assign any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactionPremises to any Tenant related entity, and has substantial experience in the operation of the Permitted Use. Any assignment subsidiary or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account successor of Tenant. A consent (“Affiliate”) without Landlord’s consent, but by providing notice to one assignmentLandlord; subparagraphs (d), subletting(e), occupation or use by any other person and (f) of this Paragraph 26 are subject to this sentence. For non-affiliated companies, Landlord shall not be deemed to be unreasonably withhold or delay the approval of any proposed sublease or assignment.
(c) If Tenant is a consent to any subsequent assignmentpartnership or a limited liability company, sublettinga withdrawal or change, occupation in one or use by another person. Notwithstanding anything to more transactions, of partners or members owning in the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than aggregate a fifty percent (50%) or more interest in the profits of the voting stock partnership or limited liability company, or any transaction or event which results in a change in control of the partnership or limited liability company, or if Tenant is a corporation, any change or which Tenant owns greater than transfer in the aggregate of fifty percent (50%) or more of all classes its voting stock or beneficial interest, whether in one or more transactions, shall constitute a Transfer and shall be subject to these provisions. If Tenant is a corporation, partnership, or limited liability company a sale, subparagraphs (d), (e), and (f) of stock this Paragraph 26 are subject to this sentence or other transfer of fifty percent (50%) or all classes more of partnership its assets in the aggregate, in one or membership interest)more transactions, shall also be a Transfer under this Lease and in addition shall be void as to Landlord without Landlord’s prior written consent. No consent to a Transfer or sublease shall constitute a future waiver of the provisions of this Paragraph 26.
(bd) Tenant shall provide notify Landlord with a copy in writing of any proposed Tenant’s intent to Transfer or sublease all or assignment that contains part of this Lease or the Premises, the name and address of the proposed subtenant assignee or assigneesublessee, information concerning the anticipated effective date financial responsibility of the proposed sublease assignee or assignment, sublessee and all the duration terms of the term proposed Transfer or subletting; within 15 days after receipt of all such information and all additional information requested by Landlord concerning the proposed Transfer or sublease, Landlord shall elect by notice to Tenant (“Landlord’s Election”) to do one of the following: (a) consent to such proposed Transfer or sublease; (b) refuse such consent, which refusal shall be on reasonable grounds. As conditions to granting its consent to any proposed Transfer or sublease, Landlord may require:
(i) delivery to and approval by Landlord of a true copy of the fully executed instrument of Transfer or sublease, and the amount delivery to Landlord of space an agreement executed by the transferee or sublessee in form and substance satisfactory to Landlord and expressly enforceable by Landlord, whereby the transferee or sublessee assumes and agrees to be bound by all of the terms and provisions of this Lease and to perform all of the obligations of Tenant under this Lease;
(ii) that any sublease provide that it is subject and subordinate to this Lease and to all mortgages, that Landlord may enforce the provisions of the sublease, including collection of rent, and that in the event of termination of this Lease for any reason, including without limitation a voluntary surrender by Tenant, or in the event of any reentry or repossession of the Premises by Landlord, Landlord may, at its option, either (x) terminate the sublease or (y) take over all of the right, title and interest of Tenant, as sublessor, under such sublease, in which latter case such sublessee shall attorn to Landlord, but that nevertheless Landlord shall not (1) be liable for any previous act or omission of Tenant under such sublease, (2) be subject to any defense or offset previously accrued in favor of the sublessee against Tenant, or (3) be bound by any previous modification of any sublease made without Landlord’s written consent, or by any previous prepayment by sublessee of any rent or other payments.
(e) Landlord shall have the right to approve or disapprove any proposed subtenant will occupyassignee or subtenant. In additionexercising such right of approval or disapproval, Tenant Landlord shall provide detailed information regarding the proposed subtenant’s be entitled to take into account any fact or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information factor which Landlord reasonably requires. Landlord may require an opportunity deems relevant to meet and interview such decision, including but not necessarily limited to the proposed subtenant or assignee as well. For purposes following, all of which are agreed to be reasonable factors for Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider consideration:
(i) the relative The financial strength, business reputation and operational/management experience strength of Tenant and the proposed subtenant assignee or assigneesubtenant, including the adequacy of its working capital to pay all expenses anticipated in connection with any proposed remodeling of the Premises. Landlord’s Initials Tenant’s Initials
(ii) any history that the The proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after by such sublease proposed assignee or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materialssubtenant and the compatibility of such proposed use within the quality and nature of the other uses in the Project.
(ciii) If Any violation which the proposed use by such proposed assignee or subtenant would cause of any other rights granted by Landlord consents to other tenants of the Project.
(iv) Any adverse impact of the proposed use of the Premises by such proposed assignee or subtenant upon the parking or other services provided for Project tenants generally.
(v) Whether there then exists any default by Tenant pursuant to this Lease or any non-payment or non-performance by Tenant under this Lease which, with the passage of time or the giving of notice, would constitute a default under this Lease.
(vi) The business reputation, character, history and nature of the business of the proposed assignee or subtenant.
(vii) Whether the proposed assignee or subtenant is a tenant or existing subtenant, or is an affiliate of or associated with any tenant or existing subtenant of the Project or is a person with whom Landlord has negotiated for space in the Project during the twelve (12) month period ending with the date Landlord receives notice of such proposed assignment or subleasesubletting.
(viii) Whether the proposed assignee or subtenant is a governmental entity or agency. Moreover, the form of Landlord shall be entitled to be reasonably satisfied that each and every covenant, condition or obligation imposed upon Tenant by this Lease and each and every right, remedy or benefit afforded Landlord by this Lease is not impaired or diminished by such assignment or sublease shall be satisfactory to subletting. Landlord and Tenant acknowledge that the express standards and provisions set forth in this Lease dealing with assignment and subletting, including those set forth in this subparagraph (e) have been freely negotiated and are reasonable at the date hereof taking into account Tenant’s proposed use of the Premises and the nature and quality of the Building and Project. No withholding of consent by Landlord for any reasonable reason deemed sufficient by Landlord shall give rise to any claim by Tenant or any proposed assignee or subtenant or entitle Tenant to terminate this Lease, to recover contract damages or to any abatement of rent. In this connection, Tenant hereby expressly waives its rights under California Civil Code Section 1995.310.
(f) Whether or not Landlord shall consent to a Transfer or sublease under the provisions of this Paragraph 26, (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), processing fees and reasonable attorneys’ fees incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, determining whether or not such assignment to so consent, and (ii) Tenant shall not be relieved of any responsibility under this Lease without Landlord’s express written release, which Landlord may grant or sublease is approvedwithhold in its sole, subjective discretion. Notwithstanding anything else in this article containedIf Landlord shall consent to any Transfer, Tenant shall pay to Landlord, as a condition to Landlord’s written approval of any sublease by Tenantadditional rent, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of all net sums or other consideration payable to and for the benefit of Tenant by the transferee on account of the Transfer, as and when such sums and other consideration are due and payable to or for the benefit of Tenant (or, if Landlord so requires, and without any profit derived by release of Tenant’s liability for the same, Tenant as a result shall instruct the transferee to pay such sums and other consideration directly to Landlord). If in connection with any proposed sublease Tenant receives net sums or other consideration, either initially or over the term of such the sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease , in excess of the Rent required rent called for under this Lease or, in case of the sublease of a portion of the Premises, in excess of such rent fairly allocable to be paid such portion, after appropriate adjustments to assure that all other payments called for under this Lease are taken into account, Tenant shall pay to Landlord as additional rent one hundred percent (100%) of the net sums or other consideration received by Tenant hereunderpromptly after its receipt. In As used in this paragraph, “net sums or other consideration” shall include without limitation the absence then fair value of any such agreement between non-cash consideration and shall be Landlord’s Initials Tenant’s Initials calculated after first deducting reasonable costs incurred by Tenant in connection with the Transfer or sublease, including without limitation commissions payable to a brokers, space modification costs in connection with the Transfer or sublease, reasonable legal costs, free rent concessions to the transferee or sublessee, and its subtenant, there will be deemed to be no profitlease take-over costs. Tenant shall deliver all documents pertaining Landlord’s waiver of or consent to any such Transfer or subletting to Landlord upon Landlord’s demand. Such profit shall not include relieve Tenant or any lump-sum payment made to Tenant transferee or sublessee from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, any obligation under this Lease whether or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinaccrued.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, either voluntarily or by operation of law law, directly or otherwise) assignindirectly, transfersell, mortgageassign or transfer this Lease, pledgein whole or in part, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or permit the Premises or any right or privilege appurtenant theretopart thereof to be occupied by any persons, corporation, partnership, or allow any other person (the entity except Tenant or Tenant’s employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordLandlord in each instance. A transfer of stock control in Tenant, to an entity which currently owns more if Tenant is a corporation, or the transfer of a greater than fifty percent forty-nine (5049%) of the voting stock of beneficial ownership interest in Tenant, if Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of is a partnership or membership interest).
(b) Tenant other entity, shall provide Landlord with a copy be deemed an act of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupyhereunder. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s any such subletting or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it assignment transaction shall be considered reasonable for Landlord to consider in all respects in compliance with the applicable provisions of the Medicare Anti Kick-Back law, 42 USC I320a-7(b)(l) and (i2) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee▇▇▇▇▇ Self-Referral Prohibition Act, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado42 USC 1395nn el, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleaseseq, as the case same may bebe modified, supplemented or replaced from time to time, and oil regulations promulgated thereunder from time to time. Any sale, assignment, mortgage, transfer or subletting of this Lease which is not in a form satisfactory compliance with the provisions of this Article X shall be void. The consent by Landlord to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such any assignment or sublease and all other materials submitted by subletting shall not be construed as relieving Tenant in connection with from obtaining the request for Landlord’s consentexpress prior written consent of Landlord to any further assignment or subletting or as releasing Tenant from any liability or obligation hereunder, whether or not such then accrued. Should Landlord permit any assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived subletting by Tenant and should the monies received as a result of such sublease. Such profit is defined as any amounts received assignment or subletting (when compared to the monies still payable by Tenant from its subtenant pursuant to Landlord) be greater than would have been received hereunder had not Landlord permitted such assignment or subletting, then the sublease in excess of the Rent required to shall be paid payable by Tenant hereunderto Landlord, it being the parties’ intention that Landlord, and not Tenant, shall be the party to receive any profit from any assignment or subletting. In the absence event of any such agreement between Tenant and its subtenantassignment or subletting approved by Landlord, there will be deemed to be no profit. Tenant the assignee or sublessee shall deliver assume all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee obligations under this Lease and shall be conclusively established as not attributable bound to comply with all the terms and provisions of this Lease and Tenant and such assignee or sublessee shall be jointly and severally liable for the performance of Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereincovenants under this Lease.
Appears in 1 contract
Sources: Medical Office Building Lease (LifeCare Holdings, Inc.)
Assignment and Subletting. (a) 18.1 Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheldwithheld (except that Landlord shall in no event be obligated to consent to an encumbrance of this Lease or (subject to Section 18.2) any transfer by operation of law): (a) assign, conditioned convey, mortgage or delayed and will not be withheld if otherwise transfer this Lease or any interest hereunder, or sublease the assigneePremises, subtenant or transferee is reputableany part thereof, has equal whether voluntarily or better credit by operation of law; or (b) permit the use of the Premises or any part thereof by any person other than Tenant and its employees. Any such transfer, sublease or use described in the preceding sentence (a “Transfer”) occurring without the prior written consent of Landlord shall, at Landlord’s option, be void and of no effect. Landlord’s consent to any guarantor Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord may require as a condition to its consent to any assignment of this Lease at that the time assignee execute an instrument in which such assignee assumes the remaining obligations of Tenant hereunder; provided that the acceptance of any assignment of this Lease by the applicable assignee shall automatically constitute the assumption by such assignee of all of the subject transaction, and has substantial experience in the operation remaining obligations of the Permitted UseTenant that accrue following such assignment. Any assignment The voluntary or subletting without such consent (whether actual other surrender of this Lease by Tenant or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute a default under terminate all or any existing sublease or may, at the terms option of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor operate as a release an assignment to Landlord of Tenant’s interest in any or all such subleases.
18.2 A sale, but transfer, pledge, or hypothecation by Tenant of all or substantially all of its assets or all or substantially all of its stock, (except where Tenant is a publicly traded corporation), a merger of Tenant with another corporation where Tenant is not the same shall be taken to be surviving corporation, or a payment on account sale of Tenant. A consent to one assignmentfifty percent (50%) or more of its stock or a sale of substantially all its assets; or the sale, sublettingtransfer, occupation pledge, or use by any hypothecation of fifty percent (50%) or more of the beneficial ownership interest in Tenant if Tenant is a partnership or other person shall not be deemed to be a consent to any subsequent assignmentbusiness association, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) shall, in any of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name foregoing cases and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment accomplished by one or sublease is approvedmore related or unrelated transactions, constitute a Transfer for purposes of this Article 18. Notwithstanding anything else to the contrary contained in this article containedArticle 18, as a condition to Tenant may assign this Lease or sublet the Premises without the need for Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.’s
Appears in 1 contract
Sources: Lease Agreement (Qualys, Inc.)
Assignment and Subletting. (a) Tenant shall not (voluntarilysell, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate pledge or encumber in any manner transfer this Lease or any estate or interest thereinthereunder, and shall not nor sublet the Premises or any part or parts thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord in each instance, which consent may be refused in Landlord's sole discretion. If Landlord, to an entity which currently owns more than fifty percent (50%) or any successor owner of the voting stock Premises, shall convey or otherwise dispose of Tenant its interest in the Property or which Tenant owns greater than fifty percent (50%) Building, or shall assign Landlord's interest in this Lease, then all liabilities and obligations thereafter accruing or maturing on the part of all classes of stock (Landlord or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address such successor-owner of the proposed subtenant Premises, or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes former holder of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable 's interest under this Lease, (iii) provide that subtenant will comply with all terms shall cease and conditions terminate without requirement of further instrumentation, and each successor-owner of the Premises, or any interest or estate therein, or holder of Landlord's interests under this Lease, (iv) provide for assumption shall be bound by an assignee of all the terms, Landlord's covenants and conditions which obligations, but only during the respective periods of the ownership by such parties; and Tenant shall continue to be bound by this Lease, and shall recognize the successor to Landlord's interests as the Landlord hereunder. The term "Landlord," as used in this Lease, means only the owner or owners of the Premises, or holder or holders of Landlord's interests under this Lease requires Tenant to performfor the time being, so that in the event of a sale or sales of the Premises, each prior Landlord, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforeeach former owner, shall be included in Tenant’s profits as described hereinand hereby is entirely freed and relieved of and from all covenants and obligations on the part of Landlord thereafter accruing or maturing, the same to be deemed and construed to have been assumed and agreed to by each successor to ▇▇▇▇▇▇▇▇'s interests hereunder, for the limited period herein specified.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. (a) Tenant shall agrees for itself and its permitted successors and assigns in interest that it will not (voluntarilyi) assign or otherwise transfer, mortgage, or otherwise encumber this lease or any of its rights under this Lease; (ii) sublet the Leased Premises or any part of them or permit the occupancy or use of the Leased Premises or any part of them by any person other than Tenant; or (iii) permit the assignment or other transfer of this Lease or any of Tenant’s rights under it by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time each of the subject transaction, and has substantial experience events referred to in the operation of the Permitted Use. Any assignment or subletting without such consent preceding clauses (whether actual or deemedi), (ii) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed (iii) being referred to as a consent or waiver by Landlord“Transfer”), nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord in each instance first obtained, which consent may be given or withheld in the Landlord’s sole discretion, and any consent given shall not constitute a consent to an entity any later Transfer. Any attempted Transfer without Landlord’s consent shall be void and shall not confer any rights upon any purported transferee, assignee, mortgagee, sublessee, or occupant. No Transfer, regardless of whether Landlord’s consent has been granted or withheld, shall be deemed to release Tenant from any of its obligations or to alter, impair, or release the obligations of any person guaranteeing the obligations of Tenant. If Tenant is a corporation, the stock of which currently owns more than fifty percent (50%) is not publicly traded, any transfer of Tenant’s issued and outstanding capital stock or any issuance of additional capital stock, as a result of which the majority of the voting issued and outstanding capital stock of Tenant is held by a corporation, firm, or person or persons who do not hold a majority of the outstanding capital stock as of the date of this Lease, shall be deemed a prohibited Transfer under this Section 23. Further, if Tenant is a partnership, any Transfer of any interest in the partnership or any other change in the composition of the partnership, which results in a change in management of Tenant owns greater than fifty percent (50%) from the person or persons managing the partnership as of all classes the date of stock this Lease, shall be deemed a prohibited Transfer under this Section 23. If Landlord consents to a Transfer of this Lease and the amount of the rents (or all classes other compensation) to be paid to the Tenant by any such transferee is greater per square foot than the rents required to be paid by the Tenant to the Landlord pursuant to this Lease or a premium is to be paid to Tenant for an assignment of partnership or membership interest).
(b) this Lease. Tenant shall provide pay to Landlord with a copy any such excess or any such premium, as the case may be, upon receipt by Tenant from such transferees. Notwithstanding anything contained in this Section 23, in the event that, at any time and from time to time before to or during the Term of any proposed sublease this Lease, Tenant desires to Transfer this Lease in whole or assignment that contains in part. Tenant shall submit to Landlord (i) in writing, the name and address of the proposed subtenant or assignee, the anticipated effective date a reasonably detailed statement of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s business and reasonably detailed financial references and information concerning the financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview of the proposed subtenant or assignee as well. For purposes assignee; and (ii) a fully-executed copy of Landlord’s consent to a the final proposed sublease or assignment, it the effective date of which shall be considered reasonable for at least thirty (30) days after the date on which Tenant shall have furnished Landlord with all of the information required pursuant to consider (i) the relative financial strength, business reputation above and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, which shall be conditioned on Landlord’s consent to it and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the an agreement in form of such assignment or sublease shall be and substance satisfactory to Landlord by Tenant to indemnify Landlord against liability resulting from any claim made against Landlord by the proposed assignee or subtenant or by any broker claiming a commission in connection with the proposed Transfer. Tenant agrees to pay Landlord all costs incurred by Landlord in connection with any actual or proposed Transfer, including, without limitation, the costs of making investigations as to the acceptability of a proposed subtenant or assignee and legal costs incurred in connection with any requested consent. No transfer consented to by Landlord shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that valid unless Tenant shall remain liable under this Leasedeliver to Landlord, with ten (iii10) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. days after Landlord’s written consent will not be effective unless and until Tenant delivers to Landlord an originalhas been received, a duplicate original sublease, duly executed assignment or subleaseby Tenant, as the case may be, in a form and substance satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable feesand in case of an assignment, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease an instrument in form and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition substance satisfactory to Landlord’s written approval of any sublease , duly executed by the assignee and the Tenant, Landlord may require that it in which such assignee shall be entitled agree to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required assume, observe, perform, and to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenantpersonally bound by, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryobligations under this Lease and the Tenant shall agree to remain primarily liable for such obligations. Any levy or sale in execution of a judgment or any assignment of sale in bankruptcy, or goodwill: but any amount attributed to lease assignment on any document concerning insolvency, or the transaction (including the assignee’s tax return) appointment of a receiver or Trustee by assignee a state or federal court shall be conclusively established as not attributable deemed a Transfer within the meaning and terms of this Section 23 shall apply to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthe extent permitted by applicable law.
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall Too, Inc. may not (voluntarilyassign this Agreement, or allow it to be assigned, in whole or in part, by operation of law or otherwise) assignotherwise or mortgage or pledge the same, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Subleased Premises, or any portion thereofpart thereof (any of the foregoing transactions is herein referred to as a "TRANSFER"), without first obtaining the prior written consent of LandlordPrime Tenant, which consent will may be withheld by Prime Tenant in its sole and absolute discretion without regard to standards of reasonableness. Notwithstanding the foregoing, but subject to the terms of the Prime Lease, Too, Inc. may effect a Transfer, without the consent of Prime Tenant, to an Affiliate of Too, Inc., provided that if at any time after such permitted Transfer the transferee is no longer an Affiliate of Too, Inc., the event terminating such affiliation shall be deemed a Transfer subject to Prime Tenant's consent pursuant to the preceding sentence.
(b) In the event of any Transfer, whether or not Prime Tenant grants its consent to such Transfer or withholds its consent to such Transfer, Too, Inc. shall remain fully liable to perform its duties under this Agreement following a Transfer. If Too, Inc. enters into a Transfer, Too, Inc. shall pay to Prime Tenant 50% of all consideration received by Too, Inc. in such transaction (as rent or inducement for such Transfer) that is in excess of the total sums that Too, Inc. is obligated to pay Prime Tenant under this Agreement, or the prorated portion thereof if only a portion of the Subleased Premises is Transferred; provided that if the Prime Lease requires that any such excess amounts received in connection with any Transfer be remitted to the Landlord under the Prime Lease, then all such amounts shall be so remitted.
(c) Any proposed Transfer shall also be subject to the restrictions and requirements set forth in the Prime Lease. Any purported Transfer consummated in violation of the provisions of this Section 11 shall be null and void and of no force or effect.
(d) If Prime Tenant intends to assign a Prime Lease or further sublet the Leased Premises exclusive of the Subleased Premises to a person or entity that is not an Affiliate of Limited, Prime Tenant shall give Too, Inc. written notice of such proposed assignment or sublease at least 60 days prior to the effective date of such assignment or sublease, and Too, Inc. shall have the right to terminate this Agreement with respect to such Prime Lease by giving written notice thereof to Prime Tenant prior to such effective date. Too, Inc.'s termination notice shall specify the termination's effective date, which shall be no later than 60 days after the effective date of Prime Tenant's assignment or sublease. If Too, Inc. does not elect to terminate this Agreement with respect to such Prime Lease or such assignment or sublease is to an Affiliate of Limited, the following shall be conditions precedent to the effectiveness of such assignment or sublease:
(i) in the case of an assignment, Prime Tenant shall cause the assignee to assume and be bound by the terms of this Agreement, but only to the extent such terms apply to such Prime Lease, and, notwithstanding such assignment, Prime Tenant shall not be unreasonably withheld, conditioned or delayed released from and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default remain fully liable under the terms of this Agreement with respect to such Prime Lease. Acceptance ; and
(ii) in the case of Rent by Landlord from anyone other than a sublease, Prime Tenant shall not be construed as cause the transferee to acknowledge the rights of Too, Inc. under this Agreement with respect to the Subleased Premises and the remainder of the Leased Premises and agree that its possession is subject to such rights of Too, Inc. Any sublet or assignment by Prime Tenant to a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person non-Affiliate under this Section shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) early termination of the voting stock Prime Lease by Prime Tenant for purposes of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed Section 18 hereof unless Prime Tenant, in its discretion, concludes that such sublease or assignment that contains would materially impair Too, Inc.'s business as then conducted in the name and address of the proposed subtenant or assigneeadjacent Subleased Premises. Furthermore, the anticipated effective date of the proposed if, as a condition to such sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Prime Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity is obliged to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.incur Store Separation Costs
Appears in 1 contract
Sources: Store Leases Agreement (Too Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law voluntarily or otherwise) assign, transfer, mortgage, pledge, hypothecate involuntarily transfer or encumber assign this Lease or any interest therein, and shall not right under it nor sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, nor convey, mortgage, pledge, encumber or otherwise grant any portion thereofinterest, without first obtaining privilege or license whatsoever in connection with this Lease or the Premises, except with the prior written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent Consent by Landlord from anyone other than Tenant to one or more assignments, sublettings or encumbrances shall not be construed operate as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, sublettingsubletting or encumbrance (Tenant will be charged a $500 administrative fee for each such assignment or sublet), occupation each of which shall require Landlord's separate consent. Any and all other costs incurred in connection with the permitted assignment or use subletting of this Lease or the permitted grant of any encumbrance or other interest in connection with this Lease or the Premises shall be paid by another person. Notwithstanding anything the Tenant, which sums shall be added to and become a part of the contrary in Additional Rent.
(b) In the event of a permitted assignment of this Paragraph 13Lease, or subletting of the Premises, Tenant may assign shall remain fully liable and shall not be released from Tenant's obligations hereunder should any assignee or sublet subtenant fail to fully and faithfully perform each and every of Tenant's covenants herein contained, including without limitation, the Premises without the prior written consent payment of LandlordMonthly Rent and any Additional Rent as and when due.
(c) Any sale or other transfer, to an entity which currently owns more than fifty percent (50%) or any series of sales or transfers, including by consolidation, merger or reorganization, of a majority of the voting stock of Tenant, if Tenant is a corporation, or which Tenant owns greater than fifty percent (50%) any sale or other transfer, or any series of all classes sales or transfers, of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address majority of the proposed subtenant or assignee, the anticipated effective date partnership interests of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by if Tenant as is a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforepartnership, shall be included an assignment for purposes of this Section 12. As used in Tenant’s profits as described herein.this paragraph 12(c), the term
Appears in 1 contract
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfertransfer or hypothecate the leasehold estate under this Lease, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Premises, or any part thereof, or any right or privilege appurtenant thereto, or allow suffer any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use the Premises, or any portion thereof, without first obtaining without, in each case, the prior written consent of Landlord, Landlord which consent will not be unreasonably withheld. Tenant agrees to pay to Landlord, conditioned as additional rent, 50% of all rents (after Tenant deducts all costs of subleasing) or delayed and will not be withheld if additional consideration received by Tenant from its assignees, transferees or subtenants excluding the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor permitted assignees described in the last sentence of this Lease at the time paragraph in excess of the subject transactionrent payable by Tenant to Landlord hereunder. Tenant shall, and has substantial experience by thirty (30) days' written notice, advise Landlord of its intent to assign or transfer Tenant's interest in the operation Lease or sublet the Premises or any portion thereof for any part of the Permitted Useterm hereof. Any assignment In the event Tenant is allowed to assign, transfer or subletting without such sublet the whole or any part of the Premises, with the prior written consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of no assignee, transferee or subtenant shall assign or transfer this Lease. Acceptance , either in whole or in part, or sublet the whole or any part of Rent by Landlord from anyone other than Tenant shall not be construed as a the Premises, without also having obtained the prior written consent or waiver by of Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent of Landlord to one assignment, transfer, hypothecation, subletting, occupation or use by any other person shall not release Tenant from any of Tenant's obligations hereunder or be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by another any other person. Notwithstanding anything Any such assignment, transfer, hypothecation, subletting, occupation or use without such consent shall be void and shall constitute a breach of this Lease by Tenant and shall, at the option of Landlord exercised by written notice to the contrary in Tenant, terminate this Paragraph 13Lease. The leasehold estate under this Lease shall not, Tenant may assign or sublet the Premises nor shall any interest therein, be assignable for any purpose by operation of law without the prior written consent of Landlord. As a condition to its consent, Landlord may require Tenant to pay all reasonable expenses in connection with the assignment, and Landlord may require Tenant's assignee or transferee (or other assignees or transferees) to assume in writing all of the obligations under this Lease and for Tenant to remain liable to Landlord under the Lease. Notwithstanding the foregoing, without the prior consent of Landlord, Tenant shall have the right (i) to assign this Lease to an entity which currently owns more than fifty percent (50%) of the voting stock affiliate or subsidiary of Tenant or which (ii) to merge with another corporation or entity or (iii) to enter into an acquisition of another corporation or be acquired by another corporation, in each case provided that Landlord is promptly provided with notice thereof and Tenant owns greater than fifty percent remains fully liable for the full performance of Tenant's obligation under the Lease; provided, however, that in the event Tenant merges into another entity or is wholly acquired by another entity (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneein each case, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease"Successor Entity"), and provided Tenant ceases to exist and the amount of space any proposed subtenant will occupy. In addition, Successor Entity is at least as well capitalized as Tenant shall provide detailed information regarding and has at least the proposed subtenant’s same overall financial wherewithal as Tenant had prior to such merger or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignmentacquisition, it shall be considered reasonable for Landlord to consider the Successor Entity (inot Tenant) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease who shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain fully liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, hereunder as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinsuccessor tenant.
Appears in 1 contract
Sources: Lease Agreement (Intuit Inc)
Assignment and Subletting. (a) Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate voluntarily assign or encumber its interest in this Lease or any interest thereinin the Premises, and shall not sublet the Premises or sublease all or any part thereof, or any right or privilege appurtenant theretoof the Premises, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) or entity to occupy or use all or any part of the Premises, or any portion thereof, without first obtaining the Landlord's prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned delayed or delayed conditioned. Any assignment, encumbrance or sublease without Landlord's prior written consent shall be voidable, at Landlord's election, and will shall constitute a default No consent to assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this paragraph. Tenant shall notify Landlord in writing of Tenant's intent to sublease, encumber or assign this Lease and Landlord shall, within ten business days of receipt of such written notice, elect one of the following:
(i) Consent to such proposed assignment, encumbrance or sublease;
(ii) Refuse such consent, which refusal shall be on reasonable grounds; or
(iii) Elect to terminate this Lease in its entirety if an assignment or a sublease of more than seventy-five percent (75%) of the Premises, or to terminate this Lease with respect to only the portion of the Premises affected and for the term affected if a sublease of less than seventy-five percent (75%) of the Premises.
(b) As a condition for granting its consent to any assignment, encumbrance or sublease, 30 days prior to any anticipated assignment or sublease Tenant shall give Landlord written notice (the "Assignment Notice"), which shall set forth the name, address and business of the proposed assignee or sublessee, information (including references) concerning the character, ownership, and financial condition of the proposed assignee or sublessee, and the Assignment Date, any ownership or commercial relationship between Tenant and the proposed assignee or sublessee, and the consideration of all other material terms and conditions of the proposed assignment or sublease, all in such detail as Landlord shall reasonably require. If Landlord requests reasonable additional detail upon receipt of the Assignment Notice, such notice shall not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transactiondeemed to have been received until Landlord receives such additional detail, and has substantial experience in Landlord may withhold consent to any assignment or sublease until such additional detail is provided to it. Further, Landlord may require that the operation of the Permitted Use. Any sublessee or assignee remit directly to Landlord on a monthly basis, all monies due to Tenant by said assignee or sublessee.
(c) The consent by Landlord to any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent relieving Tenant or waiver by Landlord, nor as a release any assignee of Tenant, but the same shall be taken to be a payment on account this Lease or sublessee of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without from obtaining the prior express written consent of Landlord, Landlord to any further assignment or subletting or as releasing Tenant or any assignee or sublessee of Tenant from any liability or obligation hereunder whether or not then accrued. In the event Landlord shall consent to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, Tenant shall pay Landlord as Additional Rent a reasonable attorneys' and administrative fee not to exceed $500 for costs incurred in connection with evaluating the form of such assignment or sublease Assignment Notice. This section shall be satisfactory fully applicable to Landlord all further sales, hypothecations, transfers, assignments and shall subleases of any portion of the Premises by any successor or assignee of Tenant, or any sublessee of the Premises.
(id) incorporate As used in this section, the subletting of substantially all of the Premises for substantially all of the remaining term of this Lease in its entirety and shall be subject to its termsdeemed an assignment rather than a sublease. Notwithstanding the foregoing, (ii) provide that Tenant Landlord's consent shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless required for an assignment, sale or transfer to an affiliate of Tenant, any entity into which Tenant is merged, with which Tenant is consolidated or which acquires all or substantially all of the assets or stock of Tenant, provided that the assignee first executes, acknowledges and until Tenant delivers to Landlord an originalagreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease which Tenant has agreed to keep, duly executed observe or perform, that the assignee agrees that the provisions of this section shall be binding upon it as if it were the original Tenant hereunder and that the assignee shall have a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to the net worth (as so determined) of Tenant at the commencement of this Lease.
(e) Except as provided above, Landlord's consent to any sublease shall not be unreasonably withheld. A condition to such consent shall be delivery by Tenant to Landlord of a true copy of any such sublease. If for any proposed assignment or sublease Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant rent called for hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant or, in consideration case of the transfer sublease of Tenant’s businessa portion of the Premises, trade namein excess of such rent fairly allocable to such portion, inventory, or goodwill: but any amount attributed after appropriate adjustments to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.assure that all other payments called for
Appears in 1 contract
Assignment and Subletting. (a) Except as specifically provided for in (b) below, Tenant shall not (voluntarily, voluntarily or by operation of law or otherwiselaw, (i) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest thereinherein, and shall not sublet (ii) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned or delayed, provided that Tenant is not then in Default under this Lease nor is any event then occurring which with the giving of notice or the passage of time, or both, would constitute a Default hereunder. When Tenant requests Landlord's consent to such assignment or subletting, it shall notify Landlord in writing of the name and address of the proposed assignee or subtenant and the nature and character of the business of the proposed assignee or subtenant and shall provide current and prior financial statements for the proposed assignee or subtenant prepared in accordance with generally accepted accounting principles, consistently applied. Tenant shall also provide Landlord with a copy of the proposed sublease or assignment agreement, including all material terms and conditions thereof. In the event Tenant wishes to assign or sublet the entire Premises for the remainder of the Term (except in either event in connection with a Permitted Transfer) Landlord shall have the option, to be exercised within thirty (30) days of receipt of the foregoing, to (A) terminate this Lease in its entirety, (B) sublease or take an assignment, as the case may be, from Tenant of the interest, in this Lease and/or the Premises that Tenant proposes to assign or sublease, on the same terms and conditions as stated in the proposed sublet or assignment agreement, (C) consent to the proposed assignment or sublease, or (D) refuse its consent to the proposed assignment or sublease, providing that such consent shall not be unreasonably withheld, conditioned or delayed and will so long as Tenant is not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of then in Default under this Lease at nor is any event then occurring which with the time giving of notice or the passage of time, or both, would constitute a Default hereunder. In the event Landlord elects to terminate this Lease or sublease or take an assignment from Tenant of the subject transactioninterest in the Lease and/or the Premises that Tenant proposes to assign or sublease as provided in the foregoing clauses (A) and (B), respectively, then Landlord shall have the additional right to negotiate directly with Tenant's proposed assignee or subtenant and to enter into a direct lease or occupancy agreement with such party on such terms as shall be acceptable to Landlord in its sole and absolute discretion, and has substantial experience in the operation of the Permitted Use. Any assignment Tenant hereby waives any claims against Landlord related thereto, including, without limitation, any claims for any compensation or subletting without profit related to such consent (whether actual lease or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest)occupancy agreement.
(b) Tenant Without otherwise limiting the criteria upon which Landlord may withhold its consent, Landlord shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assigneebe entitled to consider all reasonable criteria including, but not limited to, the anticipated effective date of the proposed sublease following: (i) whether or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview not the proposed subtenant or assignee as well. For purposes of Landlord’s consent to is engaged in a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Coloradowhich, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federalwill be in a manner which, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, is in keeping with the form then character and nature of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease all other tenancies in its entirety and be subject to its termsthe Project, (ii) provide that Tenant shall remain liable under whether the use to be made of the Premises by the proposed subtenant or assignee will conflict with any so-called "exclusive" use then in favor of any other tenant of the Building or the Project, and whether such use would be prohibited by any other portion of this Lease, including, but not limited to, any rules and regulations then in effect, or under applicable Laws, and whether such use imposes an unreasonable load upon the Premises and the Building and Project services, (iii) provide that subtenant the business reputation of the proposed individuals who will comply with all terms be managing and conditions operating the business operations of this Leasethe assignee or subtenant, and the long-term financial and competitive business prospects of the proposed assignee or subtenant, and (iv) provide for assumption by an the creditworthiness and financial stability of the proposed assignee or subtenant in light of all the termsresponsibilities involved. In any event, covenants and conditions which this Lease requires Tenant Landlord may withhold its consent to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or subleasesublease if the actual use proposed to be conducted in the Premises or portion thereof conflicts with the provisions of Paragraph 9(a) or (b) above or with any other lease which restricts the use to which any space in the Building or the Project may be put. Notwithstanding the foregoing, as the case may beTenant may, in a form satisfactory to without Landlord's consent, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review but upon notice and delivery of evidence documenting such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consentsubletting, whether assign or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition sublet to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.an
Appears in 1 contract
Sources: Lease Agreement (Corixa Corp)
Assignment and Subletting. (a) Tenant shall not (voluntarilynot, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, assign this Lease or any interest herein or in the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises by any party other than Tenant. Pursuant to this Article 21, consent to a proposed assignment or sublease shall be determined based on, but not limited to, the following: (i) the financial responsibility of the proposed assignee or subtenant, (ii) the identity or business character of the proposed assignee or subtenant, (iii) the need for alteration of the Demised Premises, and (iv) the proposed use of the Demised Premises. Consent to one or more such transfers or subleases shall not destroy or waive this provision, and all subsequent transfers and subleases shall likewise be made only upon obtaining the prior written consent of Landlord. Without limiting the foregoing prohibition, in no event shall Tenant assign this Lease or any interest herein, whether directly, indirectly or by operation of law, or sublet the Demised Premises or any part thereof or permit the use of the Demised Premises or any part thereof by any party if such proposed assignment, subletting or use would contravene any restrictive covenant (including any exclusive use) granted to any other tenant of the Building or would contravene the provisions of Article 13 of this Lease. Notwithstanding the foregoing prohibition, Tenant shall have the right, without the consent of Landlord but with prior notice to Landlord, to assign this Lease to an entity which currently owns is more than fifty percent (50%) owned, directly or indirectly, by Tenant, and to sublet portions of the voting Demised Premises. No assignment of this Lease or subletting of the Demised Premises shall relieve Tenant of any liability arising under this Lease. Sublessees or transferees of the Demised Premises for the balance of the Lease Term shall become directly liable to Landlord for all obligations of Tenant-hereunder, without relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any liability therefor, and Tenant shall remain obligated for all liability to Landlord arising under this Lease during the entire remaining Lease Term including any extensions thereof, whether or not authorized herein. If Tenant is a partnership (which, for purposes of this Article 21 shall include limited liability companies and limited liability partnerships), a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners or members owning a controlling interest in Tenant shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer of a controlling interest in the capital stock of Tenant, shall be deemed a voluntary assignment of this Lease and subject to the foregoing provisions. Landlord may, as a prior condition to considering any request for consent to an assignment or sublease (when Landlord's consent is required), require Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy to obtain and submit current financial statements of any proposed sublease or assignment that contains the name and address of the proposed subtenant or assignee, the anticipated effective date . No assignment of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject consented to its terms, (ii) provide that Tenant by Landlord shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord shall receive an original, duly executed original assignment or sublease, as the case may beand assumption agreement, in a form and substance reasonably satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted signed by Tenant in connection with and Tenant's proposed assignee, whereby the request assignee assumes due performance of this Lease to be done and performed for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess balance of the Rent required to be paid by Tenant hereunderthen remaining Lease Term of this Lease. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such No subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventoryDemised Premises, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforepart thereof, shall be included effective unless and until there shall have been delivered to Landlord an agreement, in Tenant’s profits as described hereinform and substance reasonably satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee acknowledges the right of Landlord to continue or terminate any sublease, in Landlord's sole discretion, upon termination of this Lease, and such sublessee agrees to recognize and attorn to Landlord in the event that Landlord elects under such circumstances to continue such sublease.
Appears in 1 contract
Sources: Lease Agreement (Digital Television Services of Kansas LLC)
Assignment and Subletting. (a) Tenant Except as provided in Section 33b), without the approval of the Board of Commissioners, which shall not (voluntarilybe unreasonably withheld, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or neither CRUISES nor any entity owning an interest therein, and shall not sublet the Premises or any part thereofin CRUISES, or any entity at any level above such entity, up to the level of a human being, shall have any right whatsoever to assign, sublet or privilege appurtenant thereto, or allow any other person (the employees, agents, servants otherwise transfer its interest in and invitees of Tenant excepted) to occupy or use the Premisesthis Agreement, or any portion thereof, without first obtaining or any entity owning an interest in CRUISES, or any entity at any level above such entity, up to the written consent level of Landlorda human being, which consent will not to any other person, corporation or entity whatsoever, and in no event shall a collateral assignment be unreasonably withheldpermitted of this Agreement or any interest in any entity owning an interest in CRUISES, conditioned or delayed and will not be withheld if any entity at any level above such entity, up to the assigneelevel of a living human being, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor attempted assignment or collateral assignment shall be void and of no force or effect, except that such attempted assignment shall constitute a breach of this Lease at Agreement. As used herein, the time term “transfer” shall include any action by which the ownership is otherwise than as before such action, and shall include, without limitation, a merger, liquidation and foreclosure.
b) In the event that there is change in the ownership of more than 50% of the subject transactionissued and outstanding ownership interests in or control of CRUISES, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but then the same shall be taken to be a payment on account treated as an assignment under the provisions of TenantSection 33a). A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) of the voting stock of Tenant or which Tenant owns greater than fifty percent (50%) of all classes of stock (or all classes of partnership or membership interest).
(b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment Further provided that contains the name and address of the proposed subtenant or assigneefor purposes hereof, the anticipated effective date of the proposed sublease or assignment, the duration of term “change” shall mean aggregate change during the term of this Agreement. As of the date of execution of this Agreement, CRUISES represents that the ownership of CRUISES is held as set forth on EXHIBIT A, attached hereto and incorporated herein, and shall include the issuance of any proposed subleaseadditional interests in CRUISES At any time, DISTRICT shall have the right to request, and CRUISES, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it persons set forth on EXHIBIT A shall be considered reasonable for Landlord obligated to consider (i) the relative financial strengthprovide, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such assignment or sublease shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn sworn statement as to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be, in a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review ownership of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinCRUISES.
Appears in 1 contract
Sources: Single Vessel Operating Agreement
Assignment and Subletting. (a) 18.1 Tenant shall not (voluntarily, by operation of law or otherwise) assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereofnot, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheldwithheld (except that Landlord shall in no event be obligated to consent to an encumbrance of this Lease or any transfer by operation of law): (a) assign, conditioned convey, mortgage or delayed and will not be withheld if otherwise transfer this Lease or any interest hereunder, or sublease the assigneePremises, subtenant or transferee is reputableany part thereof, has equal whether voluntarily or better credit by operation of law; or (b) permit the use of the Premises or any part thereof by any person other than Tenant and its employees. Any such transfer, sublease or use described in the preceding sentence (a "Transfer") occurring without the prior written consent of Landlord shall, at Landlord's option, be void and of no effect. Landlord's consent to any guarantor Transfer shall not constitute a waiver of Landlord's right to withhold its consent to any future Transfer. Landlord may require as a condition to its consent to any assignment of this Lease at that the time assignee execute an instrument in which such assignee assumes the remaining obligations of Tenant hereunder; provided that the acceptance of any assignment of this Lease by the applicable assignee shall automatically constitute the assumption by such assignee of all of the subject transaction, and has substantial experience in the operation remaining obligations of the Permitted UseTenant that accrue following such assignment. Any assignment The voluntary or subletting without such consent (whether actual other surrender of this Lease by Tenant or deemed) a mutual cancellation hereof shall be void, not work a merger and shall, at the option of Landlord, constitute a default under terminate all or any existing sublease or may, at the terms option of Landlord, operate as an assignment to Landlord of Tenant's interest in any or all such subleases. For purposes of this Lease. Acceptance , the term "Transfer" shall also include (i) if a Tenant is a partnership or limited liability company, the withdrawal or change, voluntary, involuntary or by operation of Rent by Landlord from anyone law, of fifty percent (50%) or more of the partners, members or managers thereof, or transfer of twenty-five percent (25%) or more of partnership or membership interests therein within a twelve (12) month period, or the dissolution of the partnership or the limited liability company without immediate reconstitution thereof, and (ii) if Tenant is a corporation whose stock is not publicly held and not traded through an exchange or over the counter or any other than Tenant shall not be construed as a consent form of entity, (A) the dissolution, merger, consolidation or waiver by Landlord, nor as a release other reorganization of Tenant, but the same shall be taken to be a payment on account sale or other transfer of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than an aggregate of fifty percent (50%) of the voting stock shares or other interests of or in Tenant (other than to immediate family members by reason of gift or which Tenant owns greater death), within a twelve (12) month period, or (B) the sale, mortgage, hypothecation or pledge of more than an aggregate of fifty percent (50%) of all classes the value of stock the unencumbered assets of Tenant within a twelve (12) month period; provided that clause (B) shall not apply to bona fide financing transactions entered into by Avaya Inc.
18.2 If Tenant desires the consent of Landlord to a Transfer, Tenant shall submit to Landlord, at least thirty (30) business days prior to the proposed effective date of the Transfer, a written notice (the "Transfer Notice") which includes (a) the name of the proposed sublessee or all classes of partnership or membership interest).
assignee, (b) Tenant shall provide Landlord with a copy of any proposed sublease or assignment that contains the name and address nature of the proposed subtenant sublessee's or assignee's business, (c) the anticipated effective date terms and provisions of the proposed sublease or assignment, and (d) current financial statements and information on the duration proposed sublessee or assignee. Upon receipt of the term Transfer Notice, Landlord, acting reasonably and in good faith, may request additional information concerning the Transfer or the proposed sublessee or assignee (the "Additional Information"). Subject to Landlord's rights under Section 18.6, Landlord shall not unreasonably withhold its consent to any assignment or sublease (excluding an encumbrance or transfer by operation of any proposed subleaselaw), and the amount which consent or lack thereof shall be provided within thirty (30) business days of space any proposed subtenant will occupy. In additionreceipt of Tenant's Transfer Notice; provided, however, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, hereby agrees that it shall be considered a reasonable basis for Landlord to consider withhold its consent if Landlord has not received the Additional Information requested by Landlord. Without limiting any other reasonable basis for Landlord to withhold its consent to the proposed Transfer, Landlord and Tenant agree that for purposes of this Lease and any Applicable Law, Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the relative financial strengthtransferee is of a character or engaged in a business which is not in keeping with the standards or criteria used by Landlord in leasing the Project, business reputation and operational/management experience or the general character or quality of Tenant and the proposed subtenant or assignee, Project; (ii) any history that the financial net worth of the assignee or sublesee as of the time of the proposed subtenant transfer is equal to or anyone has with greater than the liquor licensing agencies financial net worth of the City of Glendale Tenant upon the Commencement Date and the State of Colorado, and is sufficient for such assignee or sublease to fulfill its obligation pursuant to such assignment or; (iii) whether the transferee, or any person or entity which directly or indirectly controls, is controlled by, or is under common control with, the transferee, is a tenant of or negotiating for space in the Project occupies space in the Project or has negotiated with Landlord within the preceding one hundred twenty(120) days (or is currently negotiating with Landlord) to lease space in the Project, (iv) the transferee has the power of eminent domain, is a governmental agency or an agency or subdivision of a foreign government; (v) an Event of Default by Tenant has occurred and is uncured at the time Tenant delivers the Transfer Notice to Landlord; (vi) in the judgment of Landlord, such a Transfer would violate any term, condition, covenant, or agreement of Landlord involving the Project or any other tenant's lease within it or would give an occupant of the Project a right to cancel or modify its lease; (vii) in Landlord's judgment, the use of the Premises after by the proposed transferee would not be comparable to the types of office use by other tenants in the Project, would entail any alterations which would lessen the value of the tenant improvements in the Premises, would result in more than a reasonable density of occupants per square foot of the Premises, would increase the burden on elevators or other Building systems or equipment over the burden thereon prior to the proposed Transfer, would require increased services by Landlord or would require any alterations to the Project to comply with applicable laws; (viii) the transferee intends to use the space for purposes which are not permitted under this Lease; (ix) the terms of the proposed Transfer would allow the transferee to exercise a right of renewal, right of expansion, right of first offer, or other similar right held by Tenant; (x) the proposed Transfer would result in more than three subleases per each full floor of the Premises being in effect at any one time during the Term; or (xi) any ground lessor or mortgagee whose consent to such sublease or assignment would create Transfer is required fails to consent thereto;. Tenant hereby waives any nuisance or violate right to terminate the Lease and/or recover damages as remedies for Landlord wrongfully withholding its consent to any federal, state or local laws or involve Hazardous MaterialsTransfer and agrees that Tenant's sole and exclusive remedy therefor shall be to seek specific performance of Landlord's obligation to consent to such Transfer.
(c) If 18.3 Landlord consents to a proposed and Tenant agree that, in the event of any approved assignment or subleasesubletting, the form rights of any such assignment assignee or sublease sublessee of Tenant herein shall be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its all of the terms, (ii) provide that Tenant shall remain liable under this Leaseconditions, (iii) provide that subtenant will comply with all terms and conditions provisions of this Lease, including, without limitation, restriction on use, assignment, and subletting and the covenant to pay Rent. Landlord may collect the rent owing by the assignee or sublessee directly from such assignee or sublessee and apply the amount so collected to the Rent herein reserved. No such consent to or recognition of any such assignment or subletting shall constitute a release of Tenant or any guarantor of Tenant's performance hereunder from further performance by Tenant or such guarantor of covenants undertaken to be performed by Tenant herein. Tenant and any such guarantor shall remain liable and responsible for all Rent and other obligations herein imposed upon Tenant, and Landlord may condition its consent to any Transfer upon the receipt of a written reaffirmation from each such guarantor in a form acceptable to Landlord (iv) provide for assumption which shall not be construed to imply that the occurrence of a Transfer without such a reaffirmation would operate to release any guarantor). Consent by an assignee of all the termsLandlord to a particular assignment, covenants and conditions which this Lease requires sublease, or other transaction shall not be deemed a consent to any other or subsequent transaction. In any case where Tenant desires to assign, sublease or enter into any related or similar transaction, whether or not Landlord consents to such assignment, sublease, or other transaction, Tenant shall pay any reasonable attorneys' fees incurred by Landlord in connection with such assignment, sublease or other transaction, including, without limitation, fees incurred in reviewing documents relating to, or evidencing, said assignment, sublease, or other transaction. All documents utilized by Tenant to performevidence any subletting or assignment for which Landlord's consent has been requested and is required hereunder, shall be subject to prior approval (not to be unreasonably withheld, conditioned or delayed) by Landlord or its attorney.
18.4 Tenant shall be bound and obligated to pay Landlord a portion of any sums or economic consideration payable to Tenant by any sublessee, assignee, licensee, or other transferee, within ten (v10) include a requirement that any subtenant attorn days following the date the same is payable to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an originalfrom such sublessee, duly executed assignment assignee, licensee, or subleaseother transferee, as the case may might be, in a form satisfactory to Landlordas follows:
(a) In the case of an assignment, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred fifty percent (10050%) of any profit derived by sums or other economic consideration payable to Tenant as a result of such sublease. Such profit is defined as any amounts received assignment shall be paid to Landlord after first deducting the unamortized cost of reasonable leasehold improvements paid for by Tenant from its subtenant pursuant in connection with such assignment and reasonable cost of any real estate commissions incurred by Tenant in connection with such assignment.
(b) In the case of a subletting, fifty percent (50%) of any sums or economic consideration payable to Tenant as a result of such subletting shall be paid to Landlord after first deducting (i) the Rent due hereunder prorated to reflect only Rent allocable to the sublease in excess sublet portion of the Rent required Premises, (ii) the reasonable cost of tenant improvements made to be paid the sublet portion of the Premises by Tenant hereunder. In for the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration specific benefit of the transfer of Tenant’s businesssublessee, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee which shall be conclusively established as not attributable to Tenant’s businessamortized over the term of the sublease, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described herein.and
Appears in 1 contract
Sources: Sublease (Telenav, Inc.)
Assignment and Subletting. (a) Tenant Except to a “Partner Company,” “Affiliate” or “Subsidiary” of TENANT (as defined below), or to an entity acquiring all or substantially all of TENANT’s assets through merger, acquisition, sale or other similar transaction, TENANT shall not (voluntarilyassign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise) assign, transferor mortgage or pledge the same, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises Leased Site, or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed and will not be withheld if the assignee, subtenant or transferee is reputable, has equal or better credit than Tenant and any guarantor of this Lease at the time of the subject transaction, and has substantial experience in the operation of the Permitted Use. Any assignment or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a consent or waiver by Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Notwithstanding anything to the contrary in this Paragraph 13, Tenant may assign or sublet the Premises without the prior written consent of LandlordOWNER, such consent not to be unreasonably withheld or delayed. OWNER shall have the right to review any mortgage or pledge documents to ensure that such documents do not allow a lien, or similar instrument, to be placed on the Leased Site if TENANT defaults thereunder. OWNER shall have the right to review any sublease to ensure that the subtenant agrees to abide by the terms and conditions of this Lease. OWNER may withhold consent if any of the aforementioned documents do not contain the preceding provisions. If any subleases provide that TENANT will receive rental payments in excess of the then current Rent due hereunder (“Excess Subrent”), the Rent shall be increased by an entity which currently owns more than amount equal to fifty percent (50%) of the Excess Subrent.
b) Each of the members of TENANT is a Partner Company. An Affiliate of an entity is any entity which directly or indirectly controls, is controlled by, or under common control with, that party. “Control” of a person or entity means the power (directly or indirectly) to direct the management or policies of that person or entity, whether through the ownership of voting stock securities, by contract, by agency or otherwise. A Subsidiary of Tenant or which Tenant owns greater than fifty an entity is any entity eighty percent (5080%) or more of all classes the ownership of stock (or all classes of partnership or membership interest)which is owned by such entity.
(bc) Tenant No consent by OWNER to any assignment or sublease by TENANT shall provide Landlord with a copy relieve TENANT of any proposed sublease obligation to be performed by TENANT under this Lease, including but not limited to paying Rent, whether arising before or assignment that contains after the name and address of the proposed subtenant or assignee, the anticipated effective date of the proposed sublease or assignment, the duration of the term of any proposed sublease, and the amount of space any proposed subtenant will occupy. In addition, Tenant shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s consent to a proposed sublease or assignment, it shall be considered reasonable for Landlord to consider (i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents to a proposed assignment or sublease, the form of such . The consent by OWNER to any assignment or sublease shall be satisfactory not relieve TENANT from the obligation to Landlord and shall (i) incorporate this Lease in its entirety and be subject obtain OWNER’s express written consent to its terms, (ii) provide that Tenant shall remain liable under this Lease, (iii) provide that subtenant will comply with all terms and conditions of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed other assignment or sublease.
d) Any sale or other transfer, as the case may beincluding by consolidation, in merger or reorganization, of a form satisfactory to Landlord, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess majority of the Rent required to be paid by Tenant hereunder. In voting stock of TENANT, if TENANT is a corporation, or any sale or other transfer of a majority in interest (whether of profits, losses, capital or voting power) or a majority of the absence persons comprising the managers of any such agreement between Tenant and its subtenantthe partnership, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit if TENANT is a partnership, shall not include any lump-sum payment made to Tenant from its subtenant in consideration be an assignment for purposes of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and therefore, shall be included in Tenant’s profits as described hereinthis Paragraph 6.
Appears in 1 contract
Sources: Ground and Tower Lease Agreement
Assignment and Subletting. (a) Except as expressly permitted in this Article VII, Tenant shall not assign or transfer (voluntarilycollectively, "assign") this Lease or all or any of Tenant's rights hereunder or interest herein by operation of law or otherwise, or sublet or otherwise license or permit anyone to use or occupy (collectively, "sublet") assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right mortgage, pledge, hypothecate or privilege appurtenant theretootherwise encumber (collectively, or allow any other person (the employees"encumber") this Lease, agentswithout, servants and invitees of Tenant excepted) to occupy or use the Premisesin each case, or any portion thereof, without first obtaining the prior written consent of Landlord, which consent will shall not be unreasonably withheld, conditioned conditioned, or delayed delayed. Landlord shall consent or withhold consent, in any event, within twenty (20) days of Landlord's receipt of all documents requested by Landlord with respect to the proposed transaction. If Landlord fails to consent or withhold consent within such period and will not then continues to fail after Tenant gives Landlord a ten (10) day reminder notice and cure period, Landlord's consent shall be withheld if deemed to have been granted. Any attempted assignment or encumbrance of this Lease or of all or any of Tenant's rights hereunder or interest herein, and any attempted sublet or permission to use or occupy the Premises or any part thereof, other than strictly in accordance with this Article VII, shall be void and of no force or effect and shall constitute an immediate Event of Default hereunder. No assignment, subletting or encumbrance, or Landlord's consent thereto, or Landlord's collection or acceptance of rent from any assignee, subtenant or transferee is reputableother party, has equal shall be construed as a waiver or better credit than release of the initial named Tenant (or any prior assignees or Guarantors hereunder) from any of its or their liabilities or obligations under this Lease, and any guarantor all of such parties shall remain jointly and severally liable hereunder, notwithstanding anything to the contrary contained in this Lease at (but subject to the time of the subject transaction, and has substantial experience limitations in the operation of the Permitted Use. Any assignment this sentence) or subletting without such consent (whether actual or deemed) shall be void, and shall, at the option of Landlord, constitute a default under the terms any guaranty of this Lease. Acceptance ; however, Tenant's liability shall be limited to the obligations that exist as of Rent the date of the assignment for the remaining Term of the Lease and any Renewal Terms expressly provided in the Lease and not for any obligations arising from any amendment to the Lease or extension of the Lease beyond the existing Renewal Terms entered into by Landlord from anyone other than Tenant and assignee. In addition, Landlord's consent to any proposed assignment, subletting or encumbrance shall not be construed as a consent to relieve Tenant or waiver by any permitted assignee, subtenant or other party from the obligation of obtaining Landlord, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a 's prior written consent to any subsequent assignment, subletting (or sub-subletting, occupation as the case may be) or use by another personencumbrance. Notwithstanding anything to the contrary in As security for this Paragraph 13Lease, Tenant may hereby assigns to Landlord the rent due from any subtenant or other occupant of the Premises. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant or other occupant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord's collection of such rent shall not be construed as either an approval of such occupancy under this Article VII (if Tenant has theretofore failed to comply with the provisions of this Article VII) or an acceptance of such subtenant or other occupant as a tenant. If Landlord's prior consent is required under this Article for Tenant, Tenant shall pay to Landlord, as Additional Rent all expenses (including reasonable attorneys' fees and accounting costs) incurred by Landlord in connection with Tenant's request to assign or encumber this Lease, or sublet the Premises without the prior written consent of Landlord, to an entity which currently owns more than fifty percent (50%) all or any part of the voting stock of Tenant Premises, in an amount not to exceed Two Thousand Five Hundred and 00/100 Dollars ($2,500.00), which amounts shall be paid within thirty (30) days after Landlord's written demand therefor, whether or which Tenant owns greater than fifty percent (50%) of all classes of stock (not Landlord consents thereto. Any assignment, sublease or all classes of partnership or membership interest)encumbrance, if any require Landlord's prior consent, shall be effected on reasonable forms.
(b) If at any time during the Term Tenant desires to assign this Lease or sublet all or part of the Premises, and if such transaction requires Landlord's prior consent, then Tenant shall provide notify Landlord with a copy of any proposed sublease or assignment that contains at least sixty (60) days in advance ("Tenant's Request Notice") and advise Landlord of: (i) the name and address identity of the proposed assignee or subtenant and a description of its business; (ii) the terms of the proposed assignment or assignee, subletting; (iii) the anticipated effective commencement date of the proposed sublease assignment or assignmentsubletting (the "Proposed Transfer Commencement Date"); and (iv) if, applicable, the duration area proposed to be sublet (the "Proposed Sublet Space"). Tenant's Request Notice shall be accompanied by the most recent audited financial statement or other evidence of financial responsibility of such proposed assignee or subtenant. Provided that Tenant is not in default of its obligations under this Lease as of the term of any proposed subleasedate Landlord receives Tenant's Request Notice, and the amount of space any proposed subtenant will occupy. In addition, Tenant Landlord shall provide detailed information regarding the proposed subtenant’s or assignee’s financial condition and credit history, relevant business history and experience, together with any other pertinent information which Landlord reasonably requires. Landlord may require an opportunity to meet and interview the proposed subtenant or assignee as well. For purposes of Landlord’s not unreasonably withhold its consent to a proposed sublease assignment of this Lease or assignmenta proposed subletting of the Premises. In the event Landlord is withholding its consent due to the occurrence of a default by Tenant, it Landlord shall notify Tenant in writing of such default and Tenant may resubmit Tenant's Request Notice upon the cure of such default. Without limitation, Landlord shall be considered deemed to be reasonable for Landlord to consider in withholding its consent if:
(i) the relative financial strength, business reputation and operational/management experience of Tenant and the proposed subtenant or assignee, (ii) any history that the proposed subtenant or anyone has with the liquor licensing agencies of the City of Glendale and the State of Colorado, and (iii) whether the use of the Premises after such sublease or assignment would create any nuisance or violate any federal, state or local laws or involve Hazardous Materials.
(c) If Landlord consents pursuant to a proposed assignment or sublease, the form of such assignment or sublease shall would not be satisfactory to Landlord and shall (i) incorporate this Lease in its entirety and be subject to its terms, compliance with Article VI hereof; or
(ii) provide that Tenant shall remain liable under this Lease, the proposed assignee or subtenant is not of a type and quality consistent and compatible with first-class office buildings located in the Geographic Area (and the tenants of such buildings); or
(iii) provide Landlord is not reasonably satisfied with the financial condition of the proposed assignee under any such assignment or the proposed sublessee under any such sublease because Landlord reasonably believes that subtenant will comply with all terms and conditions such financial condition is not sufficient for such assignee or sublessee to meet its financial obligations for the remaining term of this Lease, (iv) provide for assumption by an assignee of all the terms, covenants and conditions which this Lease requires Tenant to perform, and (v) include a requirement that any subtenant attorn to the Landlord. Landlord’s consent will not be effective unless and until Tenant delivers to Landlord an original, duly executed assignment or sublease, as the case may be; or
(iv) the proposed assignee's or subtenant's occupancy will cause an excessive density of traffic or make excessive demands on the services, maintenance or facilities of the Building or the Common Areas; or
(v) at the time of Landlord's receipt of Tenant's Request Notice, (1) the proposed assignee or subtenant is a tenant in the Building, or a party with whom Landlord or its affiliates has negotiated for the leasing of office space within the Geographic Area during the immediately preceding six (6) months and (2) Landlord or its affiliates has "competitive" (as hereinafter defined) space available for the proposed assignee or subtenant; or
(vi) less than eighty (80%) percent of the rentable area in the Building at such time is then rented and Landlord or its affiliates has "competitive" (as hereinafter defined) space available for the proposed assignee or subtenant; or
(vii) in the course of seeking an assignee, subtenant or other occupant of its space, Tenant has publicly advertised (or permitted the public advertisement of) a rental rate that is lower than the rental rate then payable by Tenant pursuant to this Lease; or
(viii) it wishes to recapture the space if permitted under, and as provided in, Section 7.3.
(c) Notwithstanding the preceding provisions of this Article VII, Landlord shall have no consent or recapture rights over a proposed assignment of this Lease to a Successor Entity (as hereinafter defined), provided that at the effective date of such assignment: (i) Tenant is not in default beyond any applicable notice and cure periods under any provision of this Lease; and (ii) such Successor Entity will use the Premises solely for the Permitted Use. The term "Successor Entity" shall mean (y) a corporation or other entity into which or with which Tenant shall be merged or consolidated, in accordance with applicable statutory provisions for the merger or consolidation of corporations or entities, or (z) a form satisfactory to Landlordcorporation or other entity acquiring this Lease and the term hereof and the estate hereby granted, and all or substantially all of the other property and assets of Tenant, and assuming all of Tenant's obligations under this Lease arising and accruing from and after the date of such acquisition; provided that, in each case, such merger or consolidation, or such acquisition and assumption, as set forth herein. Tenant shall pay Landlord’s reasonable fees, not to exceed One Thousand Dollars ($1,000.00), incurred for review of such assignment or sublease and all other materials submitted by Tenant in connection with the request for Landlord’s consent, whether or not such assignment or sublease is approved. Notwithstanding anything else in this article contained, as a condition to Landlord’s written approval of any sublease by Tenant, Landlord case may require that it shall be entitled to the receipt of one hundred percent (100%) of any profit derived by Tenant as a result of such sublease. Such profit is defined as any amounts received by Tenant from its subtenant pursuant to the sublease in excess of the Rent required to be paid by Tenant hereunder. In the absence of any such agreement between Tenant and its subtenant, there will be deemed to be no profit. Tenant shall deliver all documents pertaining to any such subletting to Landlord upon Landlord’s demand. Such profit shall not include any lump-sum payment made to Tenant from its subtenant in consideration of the transfer of Tenant’s business, trade name, inventory, or goodwill: but any amount attributed to lease assignment on any document concerning the transaction (including the assignee’s tax return) by assignee shall be conclusively established as not attributable to Tenant’s business, trade name, inventory or goodwill, and thereforebe, shall be included in Tenant’s profits as described hereinmade for a good business purpose other than (and not principally for) the purpose of transferring the leasehold estate created hereby.
Appears in 1 contract