Assignment and Subletting. Not without the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is: (i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or (ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not A. Tenant may not assign this Lease in whole or in part, nor sublet all or any portion of the Premises, without the prior written consent of Landlord to assign this Leasein each instance, to make any subleasewhich consent shall not be unreasonably withheld, delayed or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by conditioned. If Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint in default of this Lease (beyond any applicable notice and several with the assigneegrace period); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's , Landlord may, until such default is cured, withhold its consent to any proposed assignment or subletting is required both as subletting. In the event that Landlord fails to the terms and conditions thereof and as to the consistency of disapprove the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, Premises within fifteen (15) days from and all other payments then payable hereunder, after the date that Landlord receives Tenant's request to assign or the then fair market rent for sublet the Premises, then such assignment or subletting of the Premises shall be deemed to have been approved by Landlord without condition. If Tenant requests Landlord's consent to assign a specific assignment or sublease, Tenant will simultaneously with such requests give Landlord (i) the name and address of the proposed assignee or subtenant, (ii) the terms of the proposed assignment or sublease, and (iii) reasonably satisfactory and complete information about the nature, financial condition, business and business history of the proposed assignee or subtenant, and its proposed initial use of the Premises. 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. If this Lease be assigned, or if the Premises or any part thereof be underlet or occupied by any party other than Tenant, Landlord may collect Rent from the assignee, subtenant or occupant, and apply the net amount collected to sublet 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, 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 subletting shall be construed to include prohibition against any portion assignment or subleasing by operation of law. Tenant shall deliver to Landlord within twenty (20) days after any assignment or subletting a copy of the executed assignment or sublease agreement. Any assignment or sublease shall provide that the assignee or subtenant shall comply with all applicable terms and conditions of this Lease to be performed by Tenant hereunder. The permitted use of the Premises such that shall not change in connection with any assignment or sublease without Landlord's consent. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not occupy at least 40,000 r.s.f. be released from performing any of the Premises after terms, covenants and conditions hereof or any Rent or other sums to be paid hereunder.
B. Notwithstanding the date foregoing, Tenant may, without the approval of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of assign this Lease, Tenant is:
or sublease the Premises, in whole or in part, to: (ia) a any corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in which has the identity of any of the persons then having power to participate in the election direct Tenant's management and operation, or appointment of the directors, trustees or other persons exercising like functions any corporation whose management and managing the affairs of operation is controlled by Tenant; or
or (iib) any corporation a partnership majority of whose voting stock is directly or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise indirectly owned by Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter ifor (c) any corporation in which or with which Tenant, its corporate successors or assigns, is merged or consolidated, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing accordance with applicable statutory provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a for merger or consolidation of Tenant and corporations, so long as the liabilities of the corporations participating in such merger or consolidation arc assumed by the corporation surviving such merger or created by such consolidation; or (iid) any Affiliate entity acquiring this Lease and a substantial portion of Tenant Tenant's assets; or (as hereinafter definede) whose net worth is equal any successor to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of a successor entity becoming such assignment or subletting pursuant to by either of the foregoing clauses methods described in Subsections (ic) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantd) above.
Appears in 1 contract
Assignment and Subletting. Not Subtenant covenants and agrees that neither this Sublease 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 Sublease Premises, nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Subtenant or used or occupied, or utilized for desk space or for mailing privileges, by anyone other than Subtenant, or for any use or purpose other than as stated herein, or be sublet or offered or advertised for subletting, without the prior written consent of Sublandlord in every case (which consent shall not be unreasonably withheld or delayed) and of Prime Landlord to assign (if applicable under the Prime Lease). If Subtenant shall sublet the Sublease Premises, having first obtained Sublandlord's consent, at a rental in excess of the Rent due and payable by Subtenant under the provisions of this Sublease, such excess Rent (net of any excess due Prime Landlord in accordance with the Prime Lease) shall be split equally between the Subtenant and the Sublandlord after deduction of the Subtenant's expenses, it being agreed, however, that Sublandlord shall not be responsible for any deficiency if Subtenant shall sublet the Sublease Premises at a rental less than that provided for herein. It is hereby expressly understood and agreed, however, if Subtenant is a corporation, that the subletting, assignment, or transfer of this Sublease, and the term and estate granted, to make any subleasecorporation into which Subtenant is merged or with which Subtenant is consolidated, or to permit occupancy any affiliate or acquirer of the stock or assets of Subtenant, which corporation shall have a net worth at least equal to that of Subtenant immediately prior to such merger or consolidation (such corporation being hereinafter called "Assignee"), without the prior written consent of Sublandlord shall not be deemed to be prohibited hereby, if, and upon the express condition that, Assignee and Subtenant shall promptly execute, acknowledge, and deliver to landlord an agreement in form and substance satisfactory to Sublandlord hereby Assignee shall agree to be bound by and upon the covenants, agreements, terms, provisions and conditions set forth in this Sublease on the part of Subtenant to be performed by whereby Assignee shall expressly agree that the provisions of this Section 10 shall, notwithstanding such assignment transfer, continue to be binding upon it with respect to all future assignments and transfers Notwithstanding any permitted assignment or subletting, Subtenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under this Sublease and for compliance with all of its obligations as Subtenant under this Sublease. The listing of any name other than that of Subtenant whether on the doors of the Sublease Premises or on the Building directly, or otherwise, shall not operate to vest any right or interest in this Sublease or in the Sublease Premises or be deemed to be the written consent of Sublandlord mentioned in this Section 10. If this Sublease is assigned, or if the Sublease Premises or any part thereof is sublet or occupies by anyone anybody other than TenantSubtenant, voluntarily Sublandlord may, after default by Subtenant, collect Rent from the assignee, subtenant or by operation of lawoccupant, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject apply the net amount collected to the provisions Rent herein reserved, but no such assignment, subletting occupancy or collection shall be deemed a waiver of Section 5.1.12 hereof); no this covenant, or the acceptance of the Assignee, subject or occupant as a tenant, or a release of Subtenant from the further performance by Subtenant of covenants on the part of Subtenant herein continued. The consent by Sublandlord to an assignment or subletting shall not in any way be construed to relieve Subtenant from obtaining the express consent in writing of Sublandlord to any further assignment or subletting. No assignment, subletting or use of the Sublease Premises by an affiliate of Subtenant shall affect the continuing primary liability of Tenant (which, following assignment, shall purpose for which the Sublease Premises may be joint and several used in accordance with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, Sublease or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Prime Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Sublease (Network Engines Inc)
Assignment and Subletting. Not A. Consent Required ---------------- Subtenant shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of Subtenant's interest in this Sublease or the Premises without the prior written consent of the Landlord to assign (in accordance with the applicable provisions of the Master Lease) and Sublandlord, in Sublandlord's reasonable discretion, Any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void, and shall constitute a breach of this LeaseSublease.
B. No Release ---------- Regardless of any consent by Sublandlord, to make any subleaseno subletting or assignment shall release Subtenant of Subtenant's obligations, or to permit occupancy of after the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with Subtenant to pay the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Base Rent, Additional Rent, and to perform all other payments then payable obligations to be performed by Subtenant hereunder, . The acceptance of rent by Sublandlord from any other person shall not be deemed a waiver by Sublandlord of any provision hereof. Consent to one assignment or the then fair market rent for the Premises. If Tenant requests Landlord's subletting shall not be deemed consent to assign this Lease any subsequent assignment or to sublet subletting. In the event of default by any portion assignee of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. Subtenant or any successor of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request Subtenant in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity performance of any of the persons terms hereof, Sublandlord may proceed directly against Subtenant without the necessity of exhausting remedies against said assignee or such additional sublessee.
C. Fees ---- In the event Subtenant shall assign or sublet the Premises or request the consent of Sublandlord to any assignment or subletting, or if Subtenant shall request the consent of Sublandlord for any act that Subtenant proposes to do, then having power Subtenant shall reimburse Sublandlord for any fees Sublandlord is required Subtenant proposes to participate in pay as tenant pursuant to the election or appointment of the directorsMaster Lease, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members by reason of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantact.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord to Subtenant shall not assign this LeaseSublease or sublet the Premises or otherwise transfer, to make any subleasemortgage or encumber this Sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection permit the use thereof without first (i) complying with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant Prime Lease, (which, following assignment, shall be joint and several with the assignee); no ii) obtaining Prime Landlord’s consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. extent Prime Landlord's ’s, and (iii) obtaining Sublandlord’s consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionthereto, as to any assignee (but not as to any sublessee) Landlord's which consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, conditioned or delayed. Subtenant shall not be released or discharged from any liability under this Sublease by reason of any assignment or sublease by Subtenant, including, but not limited to, any assignment or sublease under Section 21(C) of the Prime Lease which has been incorporated into this Sublease as provided that Tenant in Section 19.A below. Further, Sublandlord shall not be required to consent to any such assignment or further subletting if Subtenant is not then in default under this Sublease beyond all applicable notice and cure periods or if such further subletting or assignment would cause Sublandlord to be in default under the Prime Lease. No such consent shall relieve Subtenant from the obligation to seek consent to a further subletting or assignment. Copies of all materials required by the Prime Lease shall be delivered simultaneously to Sublandlord, together with Subtenant’s request for consent. If Prime Landlord and that such assignee Sublandlord shall give their consent to any assignment of this Sublease or subtenant pays therefor the greater of the Fixed Rentany further sublease, Subtenant shall, in consideration therefor, pay to Sublandlord, as Additional Rent, fifty percent (50%) of any sums or other economic consideration, which (i) are paid to Subtenant as a result of any permitted assignment or subletting whether or not referred to as a rentals under the assignment or sublease (after deducting therefrom the reasonable costs and all other payments then payable hereunderexpenses incurred by Subtenant in connection with the assignment or subletting in question, including, without limitation, brokerage commissions, alterations made by Subtenant for purposes of preparing the Premises [or the then fair market rent applicable portions thereof] for the Premises. If Tenant requests Landlord's consent assignee/subtenant, advertising expenses, reasonable, out-of-pocket attorney’s fees and expenses in preparing and/or negotiating the assignment or sublease, free rent or other abatements or concessions given to assign the assignee/subtenant, allowances or other concessions paid by Subtenant and lease “takeover” costs paid by Subtenant to a third party landlord of other space leased by the assignee/subtenant to induce it to enter into the assignment or sublease); and (ii) exceed in total the sums which Subtenant is obligation to pay Sublandlord under this Lease or Sublease (prorated to sublet any reflect obligations allocable to that portion of the Premises subject to such that Tenant shall not occupy at least 40,000 r.s.f. assignment or sublease), it being the express intention of the Premises after the date of commencement parties that Sublandlord and Subtenant shall share equally in any profit by reason of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant . The sums payable under the forgoing paragraph shall have be paid to Sublandlord as and when received by Subtenant. Notwithstanding anything to the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlordcontrary contained herein, in which event such termination notice determining the amount payable to Sublandlord under this Section there shall be of deducted from the rent or consideration paid by the subtenant or assignee, as the case may be, the actual and reasonable costs incurred by Subtenant for marketing expenses, brokerage commissions (at rates no further force higher than standard rates), reasonable attorneys’ and architects’ fees, and any amounts paid by Subtenant to contractors or effect; Ifothers in preparing the space for occupancy by the subtenant or assignee or provided by Subtenant as a work allowance therefor, at which costs Subtenant shall be permitted to recoup before making any time during payments owed to Sublandlord under this Section 10. If this Sublease is assigned, or if the Term Premises or any portion thereof be underlet or occupied by anybody other than Subtenant, Sublandlord may, after default by Subtenant beyond all applicable notice and cure periods, collect rent from the assignee, undertenant 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 Leasecovenant, Tenant is:
(i) a corporation or the acceptance of the assignee, undertenant or occupant as tenant, or a trust (whether or not having shares release of beneficial interest) and there shall occur any change in Subtenant from the identity of any further performance by Subtenant of the persons then having power to participate in covenants on the election or appointment part of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named Subtenant herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantcontained.
Appears in 1 contract
Assignment and Subletting. Not Subtenant shall not assign this Sublease in whole or in part or sublet the Subleased Premises in whole or in part without the prior written consent of Landlord to assign this LeaseSublandlord, to make any sublease, which may be withheld or to permit occupancy of the Premises conditioned by Sublandlord in Sublandlord’s sole and absolute discretion. No such sublease or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with effective without the assignee); no consent to any of Master Landlord under the foregoing in a specific instance shall operate as a waiver in any subsequent instanceMaster Lease. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionIf, as to any assignee (but not as to any sublessee) Landlord's sublease or assignment for which consent shall be required as to the reasonable creditworthiness is necessary, Subtenant receives rent or other consideration in excess of the proposed assignee Base Rent and Additional Rent payable under this Sublease, Subtenant shall pay to Sublandlord all of such excess, after deducting Subtenant’s reasonable legal and brokerage and fit-up expenses paid for by Subtenant at the time of such subleasing or assignment. Amounts received by Sublandlord under the immediately preceding sentence shall, after deducting Sublandlord’s reasonable legal expenses incurred in view of market conditions then prevailing for leases having terms connection therewith, be divided evenly between Master Landlord and conditions comparable to this LeaseSublandlord. Landlord's If Sublandlord and Master Landlord consent to any such assignment or subletting by Tenant subletting, Subtenant shall remain fully and primarily liable to Sublandlord, in all respects, under this Sublease. Notwithstanding the foregoing, Sublandlord’s prior written consent shall not be unreasonably withheldrequired in connection with an assignment, provided that Tenant is not then in default under this Lease and that such assignee sublease, transfer and/or use of all or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any a portion of the Subleased Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease(a “Subtenant Transfer”) by Subtenant to, Landlord shall have the optionor by, exercisable any entity controlling, controlled by written notice to Tenant given within 10 days after receipt of such requestor under common control with Subtenant, to terminate this Lease as of the date of commencement the proposed sublease or assignment; providedto, howeveror by, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein entity which is a corporation and successor-in-interest to Subtenant by way of merger, consolidation or corporate reorganization, or by the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition purchase of all or substantially all of Tenant's the assets or a merger or consolidation the ownership interests of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, Subtenant; provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used hereinthat, the term "Affiliate terms of Tenant" this sentence shall mean not affect or modify the requirement that Subtenant obtain Master Landlord’s prior written consent to all assignments, sublets and refer to any entity controlled by, controlling or under common control with TenantSubtenant Transfers.
Appears in 1 contract
Assignment and Subletting. Not (a) Except as otherwise expressly provided herein, Tenant shall be permitted to sublease or license any portion of the Premises, in whole or in part, in any manner whatsoever, to subtenants (a “Premises Tenant”) pursuant to a sublease in the ordinary course of its business (a “Tenant Lease”) without the consent of Landlord, if the use specified in the Tenant Lease is permitted hereunder and by current and applicable zoning requirements. Tenant also may transfer, license, lease, sublease, and/or assign this Lease and its rights and interests hereunder, without the consent of Landlord, (i) at any time, to an Affiliate (as such term is defined in the Comprehensive Agreement), provided that Tenant or the Developer or a manager who is a knowledgeable manager reasonably approved by Landlord is the manager of such Affiliate; and (ii) from and after the issuance of a certificate of occupancy with respect to the Public Marina Component, to any third party. Tenant shall also be permitted to, at any time, transfer, convey or pledge its interest in this Lease to a Leasehold Mortgagee without the consent of Landlord. Any such sublease, transfer, conveyance or pledge by the Tenant shall be subject to all of the terms and provisions of this Lease. Except as otherwise expressly permitted hereunder, if ▇▇▇▇▇▇ seeks to assign, transfer or sell its leasehold interest in this Lease, the express prior written consent of Landlord shall be required, which consent shall not be unreasonably withheld, conditioned or delayed. Any such consent to an assignment shall be subject to all of the terms and provisions of this Lease and, provided that the assignee agrees in writing to assume all of the Tenant’s rights and obligations under this Lease, shall release Tenant from its obligations under this Lease. ▇▇▇▇▇▇▇▇’s consent shall not be required for Premises Tenant’s certificates of occupancy, building permits, tenant allowances or buildout terms and procedures except as may otherwise be required by Landlord by virtue of Landlord being the Governmental Authority overseeing these items in its regulatory capacity. Within sixty (60) days of executing a Tenant Lease with a Premises Tenant, Lessee shall notify Lessor the Tenant Lease has been executed and the identity of the Premises Tenant.
(b) Should Tenant take any action to assign this Lease without the prior written consent of Landlord to assign this Leaseas provided in Section 18(a), to make then any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to such assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint null and several with the assignee); void and of no consent to any force and effect.
(c) Any successor or assignee of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default Tenant’s rights and/or obligations under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement expressly assume in writing performance of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given rights and/or obligations and deliver same to Landlord within five ten (510) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any consummation of the persons then having power to participate in the election assignment, transfer or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsale.
Appears in 1 contract
Sources: Ground Lease
Assignment and Subletting. Not Tenant shall not sublet the Leased Premises or any part thereof, nor assign this Lease or any interest therein, without the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for (which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that conditioned or delayed), and shall not suffer or permit any assignment or transfer by operation of law or otherwise of the estate or interest of Tenant is not then in default under the Leased Premises acquired in, by or through this Lease (and that the transfer of the shares of stock of Tenant, a publicly traded company, shall not be deemed to be such an assignment or transfer). Any request by Tenant to assign or sublease shall be in writing and accompanied by (i) a true copy of the proposed documents of assignment or subletting, and (ii) information respecting the responsibility, reputation, financial condition and business of the proposed assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premisessubtenant. If Tenant requests Landlord's consent Such request shall create in Landlord an option to assign terminate this Lease or as to sublet any the portion of the Leased Premises such that Tenant shall not occupy at least 40,000 r.s.f. of covered by the Premises after the date of commencement of such sublease, request and if terminated by Landlord shall have reduce Tenant's obligations hereunder in proportion to the option, exercisable by written notice to Tenant given portion so terminated. Said option must be exercised within 10 twenty (20) days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; providedand if exercised, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease thereafter lease all or sublet any portion of the Building to the proposed assignee or sub-tenant during the remaining term of this Lease. Notwithstanding any consent by Landlord to an assignment or subletting, the Tenant shall remain jointly and severally liable (along with each approved assignee or subtenant who shall automatically become liable for all obligations of Tenant hereunder) and Landlord shall be permitted to enforce the provisions of this instrument directly against the undersigned Tenant and/or assignee or subtenant without proceeding in any way against any other person. In the event that Tenant shall assign or sublet the Leased Premises without with Landlord's consent for a rental in excess of the rent provided for herein, then, notwithstanding any other provision contained in this Lease to the contrary, Tenant shall pay to Landlord as Additional Rent hereunder fifty percent (i50%) of such "excess" rent actually received (and Tenant shall be entitle to keep the remaining 50% of such "excess" rent). In determining whether the rental is in excess of the rent provided for herein, however, there shall be no Tenant Improvement Allowance in connection with any successor of Tenant resulting from an acquisition of all or substantially all of such work. Tenant's assets actual and reasonable out-of-pocket costs and expenses associated with the sublease and/or assignment, including brokerage fees, fit-up costs, legal fees and rent concessions, shall be deducted from the rent or a merger other consideration received or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantbe received.
Appears in 1 contract
Sources: Office Lease (Express Scripts Inc)
Assignment and Subletting. Not without (a) Independent of and in addition to any provisions of the prior written consent of Landlord to assign this Master Lease, including without limitation the obligation to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. obtain Landlord's consent to any proposed assignment or subletting assignment, it is required both as to the terms understood and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent agreed that Subtenant shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or have no right to sublet the Sublease Premises or any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease thereof or assignmentany right or privilege appurtenant thereto; provided, however, that Tenant Subtenant shall have the right to rescind assign this Sublease or any interest therein, and to suffer or permit any other person to occupy or use the Sublease Premises, only upon the prior written consent of Sublandlord and Landlord, which consent shall not be unreasonably withheld. Any assignment by Subtenant without Sublandlord's prior written consent shall be void and shall, at the option of Sublandlord, terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent to assign this Sublease, (ii) the name of the proposed assignee and evidence reasonably satisfactory to Sublandlord that such request proposed assignee is comparable in reputation, stature and financial condition to tenants then leasing comparable space in comparable buildings, and (iii) the terms of the proposed assignment. Sublandlord shall, within thirty (30) days of receipt of such notice, and any additional information requested by Landlord concerning the proposed assignee's financial responsibility, elect one of the following:
(i) Consent of such proposed assignment;
(ii) Refuse such consent, which refusal shall be on reasonable ground; or
(iii) Elect to terminate the Sublease.
(c) In the event Landlord elects that Sublandlord shall consent to so terminate an assignment under the provisions of this Lease Section 16, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted assignment, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by notice given Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sublease. If for any proposed assignment, Subtenant receives Rent or other consideration, either initially or over the term of the assignment, in excess of the Rent required by this Sublease, after a deduction for the following: (a) any brokerage commission paid by Subtenant in connection therewith and (b) any reasonable attorneys' fees in connection with preparing and negotiating an assignment document ("Profit"), Subtenant shall pay to Landlord Sublandlord as additional Rent, fifty percent (50%) of such Profit or other consideration received by Subtenant within five (5) days after the date of such termination notice from Landlordits receipt by Subtenant or, in which the event such termination notice the assignee makes payment directly to Sublandlord, Sublandlord shall be refund fifty percent (50%) of no further force or effect; If, at any time during the Term of this Lease, Tenant is:Profit to Subtenant after deducting (a) and (b) above.
(id) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition Occupancy of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as part of the date hereofSublease Premises by parent, provided that Tenant provides Landlord at least thirty (30) days prior notice subsidiary, or affiliated companies of such Subtenant shall not be deemed an assignment or subletting pursuant provided that such parent, subsidiary or affiliated companies were not formed as a subterfuge to either avoid the obligation of this Section. If Subtenant is a corporation, unincorporated association, trust or general or limited partnership, then the foregoing clauses (i) sale, assignment, transfer or (ii). As used hereinhypothecation of any shares, partnership interest, or other ownership interest of such entity or the term "Affiliate of Tenant" shall mean and refer to any entity controlled bydissolution, controlling merger, consolidation, or under common control with Tenant.other reorganization
Appears in 1 contract
Assignment and Subletting. Not Tenant shall not have the right to sublet, assign or otherwise transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord, which consent will not be unreasonably withheld so long as (i) the creditworthiness and financial condition of the proposed assignee or sublessee is satisfactory to Landlord, in Landlord's reasonable discretion, and (ii) the proposed use of the Premises by such proposed assignee or sublessee would not, in Landlord's reasonable opinion, be detrimental to the Building, the Project or the other tenants therein. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublessees and transferees being hereinafter referred to as "TRANSFEREES"), by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to assign persons other than Landlord by such Transferees to which Landlord is entitled or is otherwise in contravention of this Paragraph 15. No assignment, subletting or other transfer, whether or not consented to by Landlord or permitted hereunder, shall relieve Tenant of its liability under this Lease, to make any sublease, or to permit occupancy . If an Event of Default occurs while the Premises or any part thereof by anyone other than Tenantare assigned or sublet, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event addition to any other remedies herein provided or provided by law, may collect directly from such termination notice Transferee all rents payable to the Tenant and apply such rent against any sums due Landlord hereunder. No such collection shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) construed to constitute a corporation novation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit release of Tenant is thereby impaired. This paragraph shall not apply if from the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all further performance of Tenant's assets obligations and liabilities hereunder. If Landlord consents to any subletting or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of assignment by Tenant as hereinabove provided and any category of rent subsequently received by Tenant under any such sublease is in excess of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.same Initial NSS [ILLEGIBLE] Date 6/25/98 6/26/98
Appears in 1 contract
Assignment and Subletting. Not a) Tenant will not assign this Lease, or allow same to be assigned by operation of law or otherwise, or sublet the Leased Premises or any part thereof without the prior written consent of Landlord to assign Landlord, which consent shall not be unreasonably withheld. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the rent herein specified and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease, to make any sublease, or to permit occupancy of . If the Leased Premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided or provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that may at its option collect directly from such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rentall rents becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant hereunder, and all other payments then payable hereunder, no such collection shall be construed to constitute a novation or a release of Tenant from the then fair market rent for the Premises. further performance of Tenant's obligations thereunder.
b) If Tenant requests Landlord's consent shall propose to sublet or assign this Lease or Lease, it shall so notify Landlord in writing not less than thirty (30) days prior to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement the proposed assignment or subletting. The notice shall set forth the name of such the proposed subtenant or assignee, the term, use, rental rate and other particulars of the proposed subletting or assignment, including without limitation, proof satisfactory to Landlord that the proposed subtenant or assignee is financially responsible and will immediately occupy and hereafter use the entire Leased Premises (or any sublet portion thereof) for the remaining term of this Lease (or for the entire term of the sublease, if shorter).
c) Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt in the event of such requestany proposed assignment or subletting, to terminate cancel this Lease as of the date the subletting or assignment described in Tenant's notice is to be effective. The option shall be exercised, if at all, by Landlord's giving Tenant written notice thereof within twenty (20) days following Landlord's receipt of commencement Tenant's written request. Upon cancellation, Tenant shall pay to Landlord all costs or charges which are the responsibility of Tenant hereunder through the date of cancellation, and Tenant shall, at Tenant's own cost and expense, discharge in full any outstanding commission obligation on the part of Landlord with respect to this Lease. Further, upon any such cancellation Landlord and Tenant shall have no further obligations or liabilities to each other under this Lease, except with respect to obligations or liabilities which accrue hereunder as of the cancellation date in the same manner as if such cancellation date were the date originally fixed for the expiration of the term hereof. Without limitation, Landlord may lease the Leased Premises to the prospective subtenant or assignee, without liability to the Tenant. Landlord's failure to exercise any right hereunder shall not waive Landlord's right as to any subsequent proposed sublease or assignment, nor shall any such failure be deemed to constitute Landlord's right as to any subsequent proposed sublease or assignment, nor shall any such failure be deemed to constitute Landlord's approval of the proposed sublease or assignment; provided.
d) If Landlord does not cancel this Lease, howeverLandlord agrees to approve any assignment by Tenant to any corporation succeeding to substantially all the business and assets of Tenant by merger, consolidation, purchase of assets or otherwise, or any assignment or subletting to a corporation which is an affiliate of tenant. In other cases, provided that there is no event of default on the part of Tenant (or circumstances which, with the passing of time, giving of notices, or both, would constitute an event of default), Landlord agrees not to unreasonably withhold approval of any proposed subletting or assignment as to which Landlord declines its rights of cancellation hereunder provided the proposed transaction is consummated within thirty (30) days after Landlord's approval, is upon the same terms and conditions disclosed to Landlord in Tenant's notice, and the assignment or subletting is with another financially responsible party whose use of the Leased Premises will not depreciate the value of the Leased Premises, or the value of the property adjacent thereto, or will not be extra hazardous with reference to the risk of fire or other hazards, and shall not result in any additional environmental risk for the Project. Any assignment or subletting without Landlord's approval, where required hereunder, shall be void and of no effect.
e) Landlord shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlordtransfer and assign, in which event such termination notice shall be whole or in part, any of no further force or effect; If, at any time during the Term of its rights under this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of Building or Project referred to herein, and to the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of extent that such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in assignee assumes Landlord's reasonable judgmentobligations hereunder, the credit of Tenant is thereby impaired. This paragraph Landlord shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice by virtue of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantbe released from such obligation.
Appears in 1 contract
Sources: Lease Agreement (Learningstar Corp)
Assignment and Subletting. Not (a) Tenant shall not assign, sublet, mortgage, pledge or encumber this Lease, the Premises, or any interest in the whole or in any portion thereof, directly or indirectly, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. In the event of any assignment, sublease, mortgage, pledge or encumbrance, Tenant shall: (i) remain primarily liable for the performance of all terms of this Lease, (ii) pay all reasonable costs incurred by Landlord in connection with such assignment, sublease or mortgage, including without limitation, Landlord’s attorneys’ fees (which costs and fees shall not exceed Two Thousand Dollars [$2,000.00] in the aggregate) and (iii) pay to Landlord fifty percent (50%) of any rental or any fees or charges received by Tenant in excess of the Annual Rental payable to Landlord hereunder as further rental under this Lease, after deducting all of Tenant’s actual and reasonable costs incurred in connection with such assignment or sublease, including brokerage commissions, legal fees, tenant improvement costs and free rent costs. Landlord’s consent to one assignment or sublease will not waive the requirement of its consent to any subsequent assignment or sublease as required herein. Any attempted assignment or sublease by Tenant in violation of the terms and conditions of this Section 23 shall be null and void. Upon receipt by Landlord of an Assignment/Sublease Notice (hereinafter defined), which notice contains the material terms and conditions of such proposed sublease or assignment, Landlord shall have the option, within fifteen (15) days after its receipt of such notice, to terminate this Lease with respect to the portion of the Premises which Tenant proposes to sublet or assign (the “Proposed Space”), whereupon the parties hereto shall have no further rights or liabilities with respect to the Proposed Space except as otherwise expressly set forth herein; provided, however, that such right to terminate the Lease shall not be applicable with respect to any assignment or sublease to a Qualified Tenant Affiliate.
(b) In the event of a proposed assignment of this Lease or subletting of all or a part of the Premises, Tenant shall submit to Landlord, in writing (the “Assignment/Sublease Notice”): (i) the name of the proposed assignee or sublessee, (ii) current financial statements available to Tenant disclosing the financial condition of the proposed assignee or subtenant, (iii) the nature of the business of the proposed assignee or sublessee, and its proposed use of the Premises (any assignment or subletting being subject to restrictions on use contained in this Lease, the violation of which by the proposed assignee or sublessee shall constitute absolute grounds for Landlord’s denial of the requested assignment or subletting, such grounds not being the exclusive grounds for denial under clause (iii)), (iv) the proposed commencement date of the assignment or subletting, together with a copy of the proposed assignment or sublease, and (v) the terms of the proposed sublease or assignment. Within thirty (430) days after its receipt of such notice, Landlord shall either approve or disapprove such proposed assignment or sublease in writing. Tenant shall promptly deliver a copy of the fully executed assignment or sublease to Landlord upon its receipt of same.
(c) Notwithstanding anything in this Lease to the contrary, Tenant further agrees that any assignment or sublease shall be subject to the following additional limitations: (i) in no event may Tenant assign this Lease or sublet all or any portion of the Premises to (A) an existing Tenant of the Building or its subtenant or (B) a person or entity with whom Landlord or its agent is negotiating and to or from whom Landlord, or its agent, has given or received any written or oral proposal within the past three (3) months regarding a lease of space in the Building, unless Landlord does not then have comparable space in the Building available for lease; and (ii) Tenant shall not publicly advertise the rate for which Tenant is willing to sublet the Premises.
(d) All proposed subleases and assignments shall be on a form reasonably acceptable to Landlord, and shall contain, inter alia, the following provisions: (i) any such assignment or sublease shall include an assumption by the assignee or subtenant, from and after the effective date of such assignment or sublease, of the performance and observance of the covenants and conditions to be performed and observed on the part of Tenant as contained in this Lease, and (ii) any such sublease shall specify that the term of such sublease shall not extend beyond one (1) day prior to the expiration of this Lease. The consent by Landlord to any assignment, transfer or subletting to any person or entity shall not be construed as a waiver or release of Tenant from any provision of this Lease, unless expressly agreed to in writing by Landlord (it being understood that Tenant shall remain primarily liable as a principal and not as a guarantor or surety), nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant from any such provision. No consent by Landlord to any such assignment, transfer or subletting in any one instance shall constitute a waiver of the necessity for such consent in a subsequent instance.
(e) For purposes of this Section 23, a transfer, conveyance, grant or pledge, directly or indirectly, in one or more transactions, of an interest in Tenant (whether stock, partnership interest or other form of ownership or control, or the issuance of new interests) by which an aggregate of fifty percent (50%) or more of the beneficial interest in Tenant shall be vested in a party or parties who are not holders of such interest(s) as of the date hereof) shall be deemed an assignment of this Lease; provided, however, that this limitation shall not apply to any corporation, all of the outstanding voting stock of which is listed on a national securities exchange as defined in the Securities Exchange Act of 1934. The merger or consolidation of Tenant into or with any other entity, the sale of all or substantially all of Tenant’s assets, or the dissolution of Tenant shall each be deemed to be an assignment within the meaning of this Section 23.
(f) Notwithstanding any consent by Landlord to an assignment or subletting, Tenant shall remain primarily liable for the performance of all covenants and obligations contained in this Lease. Each approved assignee or subtenant shall also automatically become liable for the obligations of Tenant hereunder. Landlord shall be permitted to enforce the provisions of this Lease directly against Tenant and/or against any assignee or sublessee without proceeding in any way against any other person. In the event that Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any subtenant and hereby authorizes each such subtenant to pay said rent directly to Landlord. Nothing in this Section 23, however, shall result in any obligation of Landlord to any subtenant of Tenant. Collection or acceptance of Base Rent or Additional Rent from any such assignee, subtenant or occupant shall not constitute a waiver or release of Tenant from the terms of any covenant or obligation contained in this Lease, nor shall such collection or acceptance in any way be construed to relieve Tenant from obtaining the prior written consent of Landlord to such assignment or subletting or any subsequent assignment or subletting.
(g) Notwithstanding anything to the contrary contained in this Section 23, Tenant shall have the right, without Landlord’s consent, but with at least twenty (20) days’ prior written notice (the “Affiliate Transfer Notice”) to Landlord (or, if Tenant is not permitted to provide prior notice pursuant to applicable law or pursuant to the terms of a confidentiality agreement to which Tenant is bound, then, as soon as Tenant is able to deliver the Affiliate Transfer Notice, but in no event later than five (5) business days after the effective date of the applicable assignment or sublease), to assign this Lease or sublease all or a portion of the Premises to a Qualified Tenant Affiliate, provided, that (x) the business operations of the proposed assignee (which shall be disclosed in the Affiliate Transfer Notice) do not conflict with any exclusivity that may be imposed upon Landlord, and (y) no active default exists hereunder. A “Qualified Tenant Affiliate” shall mean a corporation or other business entity which (i) shall control, be controlled by or be under common control with Tenant or which results from a merger with Tenant or which acquires all or substantially all of the business and assets of Tenant, (ii) is of a type and quality consistent with the first-class nature of the Building, (iii) in the event of an assignment, has the financial capacity and creditworthiness to undertake and perform the obligations of this Lease, (iv) is not a party by whom any suit or action could be defended on the ground of sovereign immunity; and (v) in the case of a merger or acquisition, has a net worth and general creditworthiness immediately after such merger or acquisition at least equal to make any sublease, or to permit occupancy the net worth and general creditworthiness of Tenant as of the Premises date immediately preceding the effective date of such merger or any part thereof by anyone other acquisition. For purposes of the immediately preceding sentence, “control” shall be deemed to be ownership of more than Tenant, voluntarily or by operation fifty percent (50%) of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable the legal and equitable interest of the controlled corporation or other expenses incurred by Landlord in connection with business entity. In the event of any request by assignment to a Qualified Tenant for consent Affiliate, Tenant shall remain fully liable to assignment or subletting (subject perform the obligations of the Tenant under this Lease, such obligations to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any obligations of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionQualified Tenant Affiliate, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to tenant, under this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Office Lease Agreement (Dova Pharmaceuticals, Inc.)
Assignment and Subletting. Not without the prior written consent This Lease shall not be assigned, encumbered or in any other manner transferred by Tenant, voluntarily or involuntarily, by operation of Landlord to assign this Leaselaw or otherwise, to make any sublease, or to permit occupancy of nor shall the Premises or any part thereof be sublet, licensed, granted or used or occupied by anyone other then Tenant without first obtaining the written consent of Landlord. A change in the control of Tenant or any guarantor of this Lease whose stock is not publicly held and traded shall be deemed to be an assignment for all purposes of this Lease. In the event that Landlord consents to said subletting or assignment, any amounts received by or payable to Tenant (other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, the reasonable value paid to reimburse Landlord promptly Tenant in repayment for reasonable legal trade fixtures and other expenses incurred by Landlord in connection with any request personal property of Tenant) above the amounts payable by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignmentLandlord hereunder, shall be joint deemed "real estate profit" and several with shall be paid to Landlord. If Tenant shall at any time during the term of this Lease sublet all or any part of said Premises or assign this Lease, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease is assigned, or if the Premises or any part thereof are subleased or occupied by anybody other then Tenant, Landlord may collect from the assignee); no consent , sublessee or occupant any rent or other charges payable by Tenant under this Lease and apply the amount collected to any the rent and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the foregoing in a specific instance shall operate assignee, sublessee or occupant as a waiver in any subsequent instancetenant nor a release of Tenant from the performance by Tenant under this Lease. Notwithstanding Landlord's consent to any proposed assignment assignment, subletting, occupation or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's use by another person, any subsequent assignment, subletting, occupation or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) use by another person shall require Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by prior written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantconsent.
Appears in 1 contract
Assignment and Subletting. Not A. Tenant shall not have the right to assign, sublet, transfer or encumber this lease, or any interest therein, without the prior written consent of Landlord to assign this LeaseLandlord. Any attempted assignment, to make any subleasesubletting, transfer or to permit occupancy encumbrance by Tenant in violation of the Premises terms and covenants of this Paragraph shall be void. All cash or other proceeds of any assignment, such proceeds as exceed the rentals called for hereunder in the case of subletting and all cash or other proceeds of any other transfer of Tenant's interest in this lease shall be paid to Landlord, whether such assignment, subletting or other transfer is consented to by Landlord or not, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. Any assignment, subletting or other transfer of Tenant's interest in this lease shall be for an amount equal to the then fair market value of such interest. These covenants shall run with the land and shall bind Tenant and Tenant's heirs, executors, administrators, personal representatives, representatives in any bankruptcy proceeding, successors and assigns. Any assignee, sublessee or transferee of Tenant's interest in this lease (all such assignees, sublessees and transferees being hereinafter referred to as "successors"), by assuming Tenant's obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than Landlord by such successors in contravention of this Paragraph. No assignments, subletting or other transfer, whether consented to by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an "event of default" as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, or provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, may at its option collect directly from such assignee or subtenant all rents becoming due to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to under such assignment or subletting (subject sublease and apply such rent against any sums due to Landlord from Tenant hereunder, and no such collection shall be construed to constitute a novation of a release of Tenant from the further performance of Tenant's obligation hereunder.
B. If this lease is assigned to any person or entity pursuant to the provisions of Section 5.1.12 hereofthe Bankruptcy Code 11 U.S.C. ss. 101 et seq., (the "Bankruptcy Code"); no , any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or subletting shall affect the continuing primary liability of Tenant (which, following assignmentdelivered to Landlord, shall be joint and several with remain the assignee); no consent to any exclusive property of Landlord and shall not constitute property of Tenant or of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceestate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's consent property under the preceding sentence not paid or delivered to any proposed assignment Landlord shall be held in trust for the benefit of the Landlord and be promptly paid or subletting delivered to Landlord.
C. Any person or entity to which this lease is required both as assigned pursuant to the terms and conditions thereof and as to the consistency provisions of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionBankruptcy Code, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as deemed, without further act or deed, to the reasonable creditworthiness have assumed all of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default obligations arising under this Lease lease on and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event assignment. Any such termination notice assignee shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) upon demand execute and there shall occur any change in the identity of any of the persons then having power deliver to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of Landlord an instrument confirming such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantassumption.
Appears in 1 contract
Assignment and Subletting. Not Independent of and in addition to any provisions of the Master Lease, including without limitation the obligation to obtain Landlord's consent to any assignment as required by the terms of the Master Lease, it is understood and agreed that Subtenant shall have no right to sublet or assign the Sublease Premises or any portion thereof without the prior written consent of Landlord to assign this LeaseSublandlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld. Any assignment or sublease by Subtenant without Sublandlord's and Landlord's prior written consent shall be void and shall, provided that Tenant is not then in default under at the option of Sublandlord, terminate this Lease Sublease. Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent to sublet or assign this Sublease, (ii) the name of the proposed subtenant or assignee and evidence reasonably satisfactory to Sublandlord that such proposed subtenant or assignee or subtenant pays therefor the greater of the Fixed Rentis comparable in reputation, Additional Rentstature and financial condition to tenants then leasing comparable space in comparable buildings, and all other payments then payable hereunder, or (iii) the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion terms of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment. Sublandlord shall within thirty (30) days of receipt of such notice, and any additional information requested by Landlord concerning the proposed subtenant's or assignee's financial responsibility, elect one of the following: Consent to such proposed sublease or assignment; providedor Refuse such consent, however, that Tenant which refusal shall have the right to rescind any such request in be on reasonable grounds. In the event Landlord elects that Sublandlord shall consent to so terminate any subletting or assignment under the provisions of this Lease Section 18, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted sublease or assignment, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by notice given Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sublease. If for any proposed sublease or assignment, Subtenant receives Rent or other consideration, either initially or over the term of the assignment, in excess of the Rent required by this Sublease ("Profit"), Subtenant shall pay to Landlord Sublandlord as additional Rent, one-half (1/2) of such Profit or other consideration received by Subtenant within five (5) days after of its receipt by Subtenant. Limitation on Estate. Subtenant's estate shall in all respects be limited to, and be construed in a fashion consistent with, the date estate granted to Sublandlord by Landlord. Subtenant shall stand in the place of such termination notice Sublandlord and shall defend, indemnify and hold Sublandlord harmless with respect to all covenants, warranties, obligations, and payments made by Sublandlord under or required of Sublandlord by the Master Lease with respect to the Sublease Premises. In the event Sublandlord is prevented from Landlordperforming any of its obligations under this Sublease by a breach by Landlord of a term of the Master Lease, then Sublandlord's sole obligation in which event such termination notice regard to its obligation under this Sublease shall be to use reasonable efforts in diligently pursuing the correction or cure by Landlord of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantbreach.
Appears in 1 contract
Assignment and Subletting. A. Not to assign, transfer, mortgage or 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 part of the Premises or permit this Lease or the leasehold estate hereby created or any other rights arising under this Lease to be assigned, transferred, pledged or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the occupancy of the Premises by anyone other than Tenant without the prior written consent of Landlord Landlord. In the event Tenant desires to assign this LeaseLease or sublet any portion or all of the Premises, Tenant shall notify Landlord in writing of Tenant’s intent to make any subleaseso 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. Except with respect to a Permitted Transfer, Landlord may terminate this Lease in the case of a proposed assignment, or suspend this Lease pro tanto for the period and with respect to permit occupancy the space involved in the case of a proposed subletting for 50% or more of the Premises Premises, by giving written notice of termination or any part thereof by anyone other than suspension to Tenant, voluntarily with such termination or suspension to be effective as of the effective date of such assignment or subletting. If Landlord does not so terminate or suspend, Landlord’s consent shall not be unreasonably withheld to an assignment or to a subletting, provided that the following conditions are met:
(i) the assignee or subtenant shall use the Premises only for the Permitted Uses;
(ii) with respect to a subletting, that after such subletting the initial Tenant named herein occupies at least twenty-five (25%) percent of the Rentable Floor Area of the Premises;
(iii) the proposed assignee or subtenant has a net worth and creditworthiness reasonably acceptable to Landlord;
(iv) the amount of the aggregate rent to be paid by operation the proposed subtenant is not less than the then current sublease market rate for the Premises; and
(v) the proposed assignee or subtenant is not then a tenant in the Building or the Park, or an entity with which Landlord is dealing or has dealt within the preceding six months regarding the possibility of lawleasing space in the Building or the Park.
(vi) the proposed assignee or subtenant provides a representation and warranty regarding the Patriot Act provisions set forth in this Lease. Tenant shall furnish Landlord with any information reasonably requested by Landlord to enable Landlord to determine whether the proposed assignment or subletting complies with the foregoing requirements, except as hereinafter provided; including without limitation, financial statements relating to the proposed assignee or subtenant.
B. Tenant shall, as Additional Rent, to reimburse Landlord promptly for Landlord’s reasonable out-of-pocket legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to such consent. If Landlord consents thereto, no such subletting or assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect in any way impair the continuing primary liability of Tenant (whichhereunder, following assignment, shall be joint and several with the assignee); no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. obligation to obtain the Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants ’s written approval in the Buildingcase of any other subletting or assignment. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent With respect to any assignment or subletting by Tenant during the Original Term of this Lease (other than to a Permitted Transferee), such assignment shall not be unreasonably withheld, provided that include the right granted to Tenant is not then in default under this Lease Section 2.3 hereinabove to extend the Term, nor the Right of First Offer right granted to Tenant under Section 2.4 above, nor the right granted to Tenant under Section 6.1.10.1 regarding Tenant’s Pet Dogs, and that such assignee sublease shall be for a term expiring no later than the Expiration Date.
C. If for any assignment or subtenant pays therefor sublease consented to by Landlord hereunder Tenant receives rent or other consideration, either initially or over the greater term of the Fixed Rentassignment or sublease, Additional Rentin excess of the rent called for hereunder, and or in case of sublease of part, in excess of such rent fairly allocable to the part, after appropriate adjustments to assure that all other payments then payable hereundercalled for hereunder are appropriately taken into account and, after deduction for reasonable marketing expenses, free rent periods, improvement allowances, tenant improvements and demising costs incurred by Tenant in connection with the assignment or sublease (with all such items to be amortized over the then fair market term of such assignment or sublease), to pay to Landlord as additional rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion fifty (50%) percent of the Premises excess of each such that payment of rent or other consideration received by Tenant promptly after its receipt.
D. If at any time during the term of this Lease, there is a name change, Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, so notify Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given and deliver evidence reasonably satisfactory to Landlord within five (5) days after the date of documenting such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; name change. If, at any time during the Term of this Lease, Tenant is:
(i) there is a corporation or transfer of a trust (whether or not having shares of beneficial interest) and there shall occur any change controlling interest in the identity shares or stock of Tenant which are not publicly traded upon a stock exchange, or the membership or general partnership or other ownership interests of Tenant (any of the persons then having power to participate in the election foregoing, an “Equity Sale”), or appointment a restructuring or reorganization of the directorsTenant entity, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur including any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; spin-off, Tenant shall so notify Landlord and Landlord may terminate (whether or not Tenant so notifies Landlord) such Equity Sale, restructuring or reorganization shall be deemed an assignment of this Lease by notice requiring Landlord’s consent, which shall not be unreasonably withheld, conditioned or delayed; provided however, Landlord’s consent shall not be required with respect to Tenant given within 90 days thereafter ifany Equity Sale, and any Equity Sale will not be deemed an assignment, if (a) in Landlord's reasonable judgmentthe event that ▇▇▇ ▇▇▇▇▇ and his management team (collectively, the credit “Current Management Team”) stay in place following such Equity Sale (and Tenant delivers to Landlord reasonable evidence of the same), Tenant delivers to Landlord reasonable evidence that Tenant’s Net Worth immediately after such Equity Sale will be no less than 95% of Tenant’s Net Worth immediately before such Equity Sale or (b) in the event that the Current Management Team will not stay in place following such Equity Sale, Tenant delivers to Landlord reasonable evidence that Tenant’s Net Worth will be no less than FORTY-FIVE MILLION and 00/100 DOLLARS ($45,000,000.00) immediately after such Equity Sale. For the avoidance of doubt, neither of the following will require Landlord’s consent nor will be deemed an assignment: (a) any transfer of shares or stock of Tenant is thereby impairedwhich are publicly traded upon a stock exchange, and (b) any transfer of any other shares or stock of Tenant, or the membership or general partnership or other ownership interests of Tenant, which (in the case of (b)) does not constitute the transfer of a controlling interest in Tenant. This paragraph “Controlling interest” shall mean having ownership of fifty percent (50%) or more of the outstanding voting stock of a corporation or other majority equity and control interest if not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding possession of power to direct or cause the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion direction of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice management of such assignment corporation or subletting pursuant to either of other entity. “Tenant’s Net Worth” means Tenant’s assets less Tenant’s liabilities, and shall be determined in accordance with generally accepted accounting principles and certified by the foregoing clauses (iaccountant(s) or (iithat prepared such statement(s). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not (a) Tenant shall not, without the prior written consent of Landlord to assign this LeaseLandlord, to make any subleaseassign, hypothecate, or to permit occupancy of otherwise transfer this Lease or any interest hereunder, or sublet the Premises or any part thereof thereof, or permit the use of the Premises by anyone any party other than Tenant. Landlord's consent or refusal to consent to a proposed assignment or sublease must be an action which is taken reasonably and in good faith. For the purposes of the immediately preceding sentence, voluntarily Landlord shall be deemed to be acting reasonably and in good faith in determining whether to consent to a proposed assignment or by operation sublease when Landlord considers such factors as, without limitation, the identity and business reputation of lawthe proposed assignee or subtenant, except as hereinafter provided; the relationship of the proposed assignee or subtenant's business, the creditworthiness of the proposed assignee or subtenant, and any agreement or leasing restrictions with existing tenants or other third parties that prohibit or restrict Landlord from leasing to the proposed assignee or subtenant. Tenant agrees to pay to Landlord as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord on demand, a Five Hundred Dollar ($500.00) administrative processing fee in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants and, in the Building. In addition, as reasonable out-of-pocket costs incurred by Landlord (including without limitation, attorneys' fees) in connection with any request by Tenant for Landlord to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant Tenant. All monies so paid shall be non-refundable in any event, regardless of whether Landlord consents to the proposed assignment or subletting. Any assignment or sublease shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rentnullify these provisions, and all later assignments or subleases shall be made likewise only after the prior written consent of Landlord is obtained in each instance.
(b) No sublease or assignment by Tenant shall relieve Tenant of any liability hereunder. Without limiting the foregoing, if, with consent of Landlord, this Lease is assigned or the Premises or any part thereof is sublet or occupied by any party other payments then payable hereunderthan 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 such assignment, subletting, occupancy, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice collection shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
deemed (i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity waiver of any of the persons then having power to participate Tenant's covenants contained in the election or appointment of the directorsthis Lease, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) the acceptance by Landlord of the assignee, subtenant, or occupancy as Tenant hereunder, or (iii) the release of Tenant from further performance by Tenant of its covenants under this Lease.
(c) The assignment or transfer of a partnership controlling interest in Tenant or association the occupancy of the Premises by any successor firm or otherwise riot a natural person entity of the Tenant or by any firm or entity into which or with which the Tenant may become merged or consolidated shall be deemed an assignment of this Lease requiring the prior written consent of Landlord.
(and is not a corporation d) Notwithstanding the giving by Landlord of its consent to any assignment or a trust) and there sublease with respect to the Premises, no such assignee or sublessee may exercise any expansion option, right of first refusal option, or renewal option under this Lease, nor shall occur any change in such party have the identity benefit of any of specific signage or other similar privileges or rights which may be provided to Tenant under this Lease except in accordance with a separate written agreement entered into directly between such assignee or sublessee and Landlord. After a permitted assignment or subletting, the persons who then are members of such partnership or association or who comprise Tenant; original Tenant shall so notify Landlord and Landlord may terminate this Lease by notice have no right to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, exercise on behalf of a permitted assignee or sublessee as to the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease space assigned or sublet any portion expansion option, right of the Premises without Landlord's consent to first refusal option or renewal or extension option.
(ie) Should Landlord permit any successor of Tenant resulting from an acquisition of all assignment or substantially all of Tenant's assets or a merger or consolidation of subletting by Tenant and (ii) any Affiliate of Tenant (should the monies received as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice a result of such assignment or subletting pursuant (when compared to either the monies still payable by Tenant to Landlord) be greater than Landlord would have received hereunder had not Landlord permitted such assignment or subletting, then fifty percent (50%) of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of TenantGross Profit" shall mean and refer be payable by Tenant to Landlord, it being the parties' intention that Landlord, in consideration of Landlord's permitting such assignment or subletting, shall receive fifty percent (50%) of any entity controlled byGross Profit from any such assignment or subletting. Further, controlling should the assignment or under common control with subletting giving rise to the Gross Profit be arranged by Landlord (or its Manager) on Tenant's behalf (if being understood that neither Landlord nor its Manager shall have any obligation to arrange for same), one hundred percent (100%) of the Gross Profit shall be paid to Landlord.
Appears in 1 contract
Assignment and Subletting. Not The following provisions shall apply to any assignment, subletting or other transfer by Tenant or any subtenant or assignee or other successor in interest of the original Tenant (collectively referred to in this Paragraph as “Tenant”):
A. Except for Permitted Assignments as provided below, Tenant shall not do any of the following (collectively referred to herein as “Transfer”), whether voluntarily, involuntarily, or by operation of law, without the prior written consent of Landlord to Landlord, which consent shall not be unreasonably withheld or delayed: (i) assign or otherwise transfer its interest in this Lease, to make Lease or in the Premises; (ii) sublet all or any sublease, or to permit occupancy part of the Premises to allow it to be sublet, occupied, or used by any part thereof by anyone person or entity other than Tenant, voluntarily ; (iii) transfer any right appurtenant to this Lease or by operation of law, except the Premises; or (iv) mortgage or encumber the Lease (or otherwise use the Lease as hereinafter provided; as Additional Rent, to a security device) in any manner. Tenant shall reimburse Landlord promptly for all reasonable legal costs and other expenses attorney’s fees incurred by Landlord in connection with the processing and/or documentation of any request requested Transfer, whether or not Landlord’s consent is granted. Any Transfer so approved by Landlord shall not be effective until Tenant for consent has paid all such costs and attorneys’ fees to assignment or subletting (subject Landlord and delivered to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any Landlord an executed counterpart of the foregoing document evidencing the Transfer which (i) is in a specific instance shall operate as a waiver in any subsequent instance. form approved by Landlord's consent to any proposed assignment or subletting is required both as to , (ii) contains the same terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants stated in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by Tenant’s notice given to Landlord within five pursuant to subparagraph B, below, and (5iii) days after with respect to an assignment, contains the date agreement of such termination notice from the proposed Transferee to assume all obligations of Tenant under this Lease. Any attempted Transfer without Landlord, in which event such termination notice ’s consent shall constitute a default by Tenant and shall be of no further force or effect; If, voidable at Landlord’s option. Landlord’s consent to any time during the Term of this Lease, Tenant is:
(i) one Transfer shall not constitute a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any waiver of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1Paragraph as to any subsequent transfer nor consent to any subsequent Transfer. No Transfer, even with the consent of Landlord, shall relieve Tenant may assign of its personal and primary 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 person shall not be deemed to be a waiver by Landlord of any provision of this Lease or sublet any portion of the Premises without Landlord's nor to be consent to any Transfer. Charleston Intuit Lease Phase 2-Buildings A-F August 4, 2003-Final
B. Tenant shall give Landlord at least ten (i10) business days prior written notice of any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or desired Transfer to a merger or consolidation of Tenant sublessee and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior written notice of any desired Transfer to an assignee, and such notice with respect to either a sublease or an assignment shall contain all of the proposed terms of such Transfer including but not limited to (i) the name and legal composition of the proposed Transferee; (ii) an audited financial statement, if available, or an un-audited financial statement if an audited statement is not available, of the Transferee for a period ending not more than one year prior to the proposed effective date of the Transfer; (iii) the nature of the proposed Transferee’s business to be carried on in the Premises; (iv) all consideration to be given on account of the Transfer; and (v) such other information as may be reasonably requested by Landlord within such ten (10) day period. Tenant’s notice shall not be deemed to have been served or given until such time as Tenant has provided Landlord with all information required by subparagraphs (i) through (iv) of this subparagraph.
C. In the event that Tenant seeks to make any Transfer, Landlord shall have the right to reasonably withhold its consent to such Transfer, as permitted pursuant to this Paragraph, or to exercise any of the rights set forth in this subparagraph, by giving Tenant written notice of its election within ten (10) business days after receipt of Tenant’s notice of intent to Transfer to a sublessee, and within thirty (30) days after receipt of Tenant’s notice of intent to Transfer to an assignee. In the event Landlord fails to provide Tenant with notice that it is withholding its consent to the proposed Transfer within such ten (10) business day period for a Transfer to a sublessee or such thirty (30) day period for a Transfer to an assignee, then Landlord shall be deemed to have rejected the proposed Transfer. Without otherwise limiting the criteria upon which Landlord may withhold its consent to any proposed Transfer, if Landlord withholds its consent where the proposed assignee’s or subtenant’s anticipated use of the Premises involves the storage, use or disposal of Hazardous Material in amounts not typically used in an office environment, such withholding of consent shall be presumptively reasonable. In addition to Landlord’s right to withhold its consent to any Transfer and without limiting Landlord in the exercise of any other right or remedy, which Landlord may have, Landlord may elect to permit Tenant to so assign the Lease or sublease such part of the Premises, in which event Tenant may do so, but without being released of its liability for the performance of all of its obligations under the Lease. If Tenant assigns its interest in this Lease in accordance with this subparagraph, then, after Tenant deducts its reasonable costs of such assignment, Tenant shall pay to Landlord fifty percent (50%) of all consideration received by Tenant on account of the Premises over and above Tenant’s obligations under this Lease. Tenant shall not, however, be required to pay to Landlord any consideration it receives for and which is equal to the fair market value for any furnishings, fixtures or other items of personal property Tenant receives in connection with the assignment or subletting, or for any services to be provided by Tenant in connection with the assignment or subletting pursuant to either (“Unrelated Consideration”). If Tenant sublets all or part of the foregoing clauses Premises, after Tenant deducts its reasonable costs of such subleasing, then Tenant shall pay to Landlord fifty percent (50%) of the positive difference, if any, between (i) or all rent and other consideration (other than Unrelated Consideration) paid by the subtenant to Tenant on account of the Premises, less (ii)) all rent paid by Tenant to Landlord pursuant to this Lease which is allocable to the area so sublet. Such amount shall be paid to Landlord on the same basis, whether periodic or in lump sum, that such rent and other consideration (other than Unrelated Consideration) is paid to Tenant by its subtenant; provided, however, should Tenant, as assignor or sublessor, be paid a lump sum fee by any assignee or sublessor which is not designated as prepaid rent and which is not Unrelated Consideration, Landlord shall be paid fifty percent (50%) of the positive difference, if any, between (i) such lump sum fee, less (ii) all rent paid by Tenant to Landlord pursuant to this Lease for the month in which such lump sum fee was paid, less (iii) any costs incurred by Tenant in connection with the assignment or subletting. If any lump sum is designated as prepaid rent, then Tenant shall pay to Landlord fifty percent (50%) of the excess of the lump sum amount over the amount of rent Tenant is required to pay hereunder for the period over which the prepaid rent relates. Tenant’s obligations under this subparagraph shall survive any assignment or sublease, and Tenant’s failure to perform its obligations under this subparagraph shall be a default under this Lease. At the time Tenant makes any payment to Landlord required by this subparagraph, Tenant shall deliver an itemized statement of the method by which the amount to which Landlord is entitled was calculated. Landlord shall have the right to inspect Tenant’s books and records relating to the payments due pursuant to this subparagraph. Upon request therefore, Tenant shall deliver to Landlord copies of all bills, invoices, or other documents upon which its calculations are based. Landlord may condition its approval of a Transfer upon obtaining a certification from both Tenant and the proposed Transferee of all amounts that are to be paid to Tenant in connection with such Transfer. As used herein, the term "Affiliate “consideration” shall mean any consideration of any kind received, or to be received, by Tenant as a result of the Transfer, if such sums are related to Tenant’s interest in this Lease or in the Premises.
D. Tenant irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent or other consideration not otherwise payable to Landlord by reason of any Transfer. Landlord, as assignee of Tenant" , or a receiver for Tenant appointed on Landlord’s application, may collect such rent or other Charleston Intuit Lease Phase 2-Buildings A-F August 4, 2003-Final consideration and apply it toward Tenant’s obligation under this Lease, provided, however, that until occurrence of any default by Tenant, Tenant shall mean have the right to collect such rent or other consideration.
E. Notwithstanding the foregoing, if immediately after the Transfer, Tenant is not conducting business from at least 200,000 rentable square feet of the Total Premises, then Landlord shall have the right, to be exercised by giving written notice to Tenant (within 20 days of Landlords’ receipt of the transfer notice referred to in Paragraph 19B above), to recapture the space which is the subject of the transfer (“Subject Space”). If such recapture notice is given, it shall serve to terminate this Lease only with respect to the Subject Space, or, if the proposed Subject Space covers all the Premises, it shall serve to terminate this entire Lease; in either case, as of the proposed effective date of the transfer or upon Landlord’s recapture notice, whichever is later. If this Lease is terminated pursuant to the foregoing provision with respect to less than the entire Premises, the Rent shall be adjusted on the basis of the proportion of rentable square feet retained by Tenant to the rentable square feet demised immediately prior to the transfer and refer this Lease as so amended shall continue thereafter in full force and effect.
F. Notwithstanding the foregoing, without the prior consent of Landlord, Tenant shall have the right: (i) to assign this Lease or sublet the Premises to any affiliate or subsidiary of Tenant which affiliate or subsidiary is more than fifty percent (50%) owned, either directly or indirectly, by Tenant; or (ii) to merge with another corporation or entity controlled byso long as substantially all of the assets of Tenant are transferred and retained by the surviving corporation or entity excluding, controlling however, any assets which may be required to be disposed of in order to make the transaction qualify under applicable antitrust laws, regulations or regulatory review; or (iii) to enter into an acquisition of another corporation; or (iv) have substantially all of its assets acquired by another corporation which other corporation assumes the obligations of this Lease (each, a “Permitted Assignment”), in each case provided that (a) Landlord is promptly provided with notice thereof following the effective date of such Permitted Assignment, (b) Tenant remains fully liable for the full performance of Tenant’s obligations under common control with Tenantthe Lease to the extent Tenant survives following such Permitted Assignment, and (c) in the case of an assignment, the successor assumes in writing all obligations under this Lease and in the case of a sublease, the sublessee assumes, in writing, all obligations under this Lease applicable to the sublease premises. Any assignee or sublessee under a Permitted Assignment is herein referred to as a “Permitted Assignee”.
Appears in 1 contract
Sources: Lease Agreement (Intuit Inc)
Assignment and Subletting. Not (a) Tenant shall not, whether by operation of law or otherwise, assign, transfer, hypothecate or otherwise encumber this Lease or any interest herein and shall not sublet or permit the use by others of the Premises or any portion thereof without obtaining in each instance Landlord's prior written consent, which consent Landlord shall not unreasonably withhold or delay. Any such assignment, sublease, transfer or hypothecation without Landlord's prior written consent shall be void and shall, at Landlord's option, constitute a default under this Lease. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee shall release Tenant from any of its obligations hereunder or be deemed to constitute Landlord's consent to any assignment, sublease, transfer or hypothecation, and in any event, Tenant shall remain primarily liable on this Lease for the entire Term hereof and shall in no way be released from the full and complete performance of all the terms, conditions, covenants and agreements contained herein.
(b) If Tenant should desire to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord prior written notice, which notice shall specify (i) the name and business of the proposed assignee or sublessee, (ii) the amount and location of the space affected, (iii) the proposed effective date and duration of the subletting or assignment, and (iv) the proposed rental or other consideration to be paid to Tenant by such sublessee or assignee. Landlord shall then have a period of twenty (20) days following receipt of such notice within which to notify Tenant in writing that Landlord elects (1) to terminate this Lease as to the space so affected as of the date so specified by Tenant, in which event Tenant will on that date be relieved of all further obligations to pay rent hereunder as to such space, (2) to permit Tenant to assign or sublet such space, in which event if the proposed rental between Tenant and sublessee for the space affected is greater than the Base Rental as adjusted under this Lease applicable to the space affected, or if consideration other than rental is paid to Tenant by such assignee or sublessee with respect to the affected space, then fifty percent (50%) of such excess rental and other consideration, net of the reasonable costs of such assignment or subletting including but not limited to brokerage commissions and tenant improvement costs, shall be deemed additional rent owed by Tenant to Landlord under this Lease, and the amount of such excess shall be paid by Tenant to Landlord in the same manner that Tenant pays the Base Rental hereunder and in addition thereto, (3) to withhold consent to Tenant's assigning or subleasing such space and to continue this Lease in full force and effect as to the entire Premises which consent will not be unreasonably withheld or delayed, or (4) to consent to Tenant assigning or subleasing such space, subject to Landlord's approval of the assignment or sublease document. Tenant agrees to reimburse Landlord in an amount of $500.00 for Landlord's attorneys' fees and costs incurred in connection with the processing and documentation of each request made pursuant to this Paragraph. Notwithstanding the giving by Landlord of its consent to any assignment or sublease with respect to the Premises, no such assignee or sublessee may exercise any expansion option, right of first refusal option, or renewal option under this Lease except in accordance with a separate written agreement entered into directly between such assignee or sublessee and Landlord, and, absent Landlord's written agreement to the contrary, all option rights of Tenant, and all lease rights of Tenant created pursuant to the exercise of any option rights, with respect to any space so assigned or subleased shall be extinguished.
(c) The sale or transfer of Tenant's voting stock (if a corporation) or a partnership interest (if a partnership) or member interest (if a limited liability company) in Tenant resulting in the transfer of control of a majority of such stock or interest, or the occupancy of the Premises by any successor firm of Tenant or by any firm into which or with which Tenant may become merged or consolidated shall be deemed an assignment of this Lease requiring the prior written consent of Landlord to assign this Lease, to make any sublease, unless the resulting company from such merger or to permit occupancy of the Premises consolidation has a reputation as good or any part thereof by anyone other better than Tenant, voluntarily has a net worth (in accordance with GAAP) as good or by operation of lawbetter than Tenant, except continues to use the Premises as hereinafter provided; as Additional Rent, to reimburse provided for herein and does not adversely affect the tenant mix that Landlord promptly for reasonable legal and other expenses incurred by has in the Building where the Premises is located.
(d) Provided Landlord is notified in connection with any request writing by Tenant prior to any Assignment or Sublease, no consent of Landlord shall be required for consent to an assignment or subletting (subject sublease to the provisions of Section 5.1.12 hereof); no assignment any parent, subsidiary, successor, affiliate or subletting shall affect the continuing primary liability otherwise related company of Tenant (whichincluding without limitation, following assignment, shall be joint and several with the assigneeany entity of which Tenant or Tenant's parent owns at least a 25% interest); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or which result from a consolidation or merger with Tenant and/or Tenant's parent organization, or which is the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion transferee of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets assets. Any assignees must have similar or a merger or consolidation greater financial strength as that of Tenant and (ii) must have a tenant profile and use of space appropriate to the Building. Said tenant profile shall include, but not be limited to, employee density, parking requirements and any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereofother reasonable standards/uses found in comparable office buildings in Birmingham, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantAlabama.
Appears in 1 contract
Sources: Lease Agreement (Infinity Property & Casualty Corp)
Assignment and Subletting. Not Subtenant shall not assign this Sublease or further sublet all or any part of the Subleased Premises without the prior written consent of Landlord to assign this Leaseand Sublandlord, to make any sublease, or to permit occupancy which consent of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall Sublandlord will not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee conditioned or subtenant pays therefor the greater delayed. Any request by Subtenant to assign and/or sublease shall be submitted by Sublandlord to Landlord promptly upon receipt of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent same from Subtenant. Sublandlord shall respond to Subtenant’s request for the Premises. If Tenant requests Landlord's consent to assign this Lease Sublease or to further sublet any portion of the Subleased Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 thirty (30) days after following receipt of such written request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant Sublandlord shall not be responsible for Landlord’s failure to timely respond to any request for consent. Additionally, any such assignment or sublease, if consented to by Sublandlord and Landlord, shall be subject to and in compliance with all of the terms and conditions of the Master Lease, and Sublandlord (in addition to Landlord) shall have the right same rights with respect to rescind assignment and subleasing as Landlord has under the Master Lease. Subtenant shall pay all fees and costs payable to Landlord pursuant to the Master Lease as well as all of Sublandlord’s reasonable out- of-pocket costs relating to any proposed assignment, sublease or transfer of the Subleased Premises regardless of whether any required consent is granted, and the effectiveness of any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice consent shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) conditioned upon Landlord’s and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition Sublandlord’s receipt of all or substantially all of Tenant's assets or a merger or consolidation of Tenant such fees and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantcosts.
Appears in 1 contract
Sources: Sublease (Pegasystems Inc)
Assignment and Subletting. Not without Landlord hereby grants to Tenant the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or right ------------------------- to sublet any portion of the Demised Premises such throughout the Term, including extensions thereof, and without first obtaining Landlord's consent, provided that Tenant shall not occupy at least 40,000 r.s.f. (a) the use made of the Demised Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term sublessee is permitted under Article VII of this Lease, and (b) Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) remains primarily liable for and there shall occur any change in retain management and control over the identity performance of any and all maintenance, repair or restoration which Tenant is required or permitted to perform pursuant to the terms of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify this Lease. Landlord and Landlord may terminate this Lease by notice hereby grants to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may right to assign this Lease or sublet any portion of throughout the Premises without Term, including extensions thereof, provided Tenant first obtains Landlord's consent to such assignment in writing. Landlord's consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, it shall be reasonable for Landlord to deny consent to a proposed assignment (ia) any successor if the use to be made of the Demised Premises by the proposed assignee would be prohibited by this Lease, or (b) if the financial condition of the proposed assignee is not reasonably satisfactory to Landlord. Landlord's consent or refusal of consent shall be in writing and, if Landlord refuses consent, the reasons for such refusal are to be stated with particularity. Landlord's consent to an assignment shall be accompanied by a statement addressed to Tenant resulting from and the assignee, upon which statement Tenant and the assignee may conclusively rely, stating that Tenant-is not in default under the Lease (or setting forth in what respects Tenant is in default), that this Lease has not been amended or modified (or setting forth such amendments or modifications), the expiration date of this Lease, and the date to which Rent has been paid to Landlord hereunder. Any permitted assignment shall not be effective unless and until the assignee delivers to Landlord an acquisition express assumption by the assignee of all or substantially all of Tenant's assets or liabilities and obligations pursuant to this Lease. Tenant shall be relieved of liability for its obligations pursuant to this Lease only if (a) the permitted assignee is a merger or consolidation of Tenant and (ii) any Affiliate of Tenant corporation with a net worth (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant reflected in its audited financial statements issued as of the a date hereof, provided that Tenant provides Landlord at least thirty no more than ninety (3090) days prior notice to the effective date of the assignment) of at least Twenty Million Dollars ($20,000,000) and (b) the holder of the mortgage having first priority on the Land and Building consents to such release, such consent not to be unreasonably withheld. In the case of any other assignment or subletting, regardless of whether Landlord consents to such assignment or subletting subletting, Tenant shall remain fully liable for all of its obligations pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantthis Lease.
Appears in 1 contract
Sources: Sublease (Microsoft Corp)
Assignment and Subletting. Not Tenant shall not sublet any part of the Demised Premises, nor assign this Lease or any interest herein, without the prior written consent of Landlord to assign this LeaseLandlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that any such sublet or assignment must be for a use which Landlord, in its reasonable discretion, does not consider to be injurious to the Demised Premises; provided, further, no such consent shall serve to release Tenant's liability hereunder. Consent by Landlord to one assignment or sublease shall not destroy or waive this provision, and all later assignments and subleases shall likewise be made only upon prior written consent of Landlord. No assignment or sublease may be requested in the event Tenant is not then in default under hereunder. Tenant shall provide Landlord with any and all information reasonably requested by Landlord with respect to such sublessee or assignee, including, but not limited to financial information and certified, audited financial statements. Sublessee or assignees shall become liable directly to Landlord for all obligations of Tenant hereunder without relieving Tenant's liability. In the event Tenant notifies Landlord of Tenant's intent to sublease or assign this Lease and that Lease, Landlord shall within thirty (30) days from receipt of such notice (i) consent to such proposed subletting, or (ii) refuse such consent. In the event Landlord gives its consent to any such assignment or sublease, any rent, rental or other cost to the assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and for all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises over and above the Rent payable by Tenant for such that space shall be paid to Landlord as additional rent. In the event this Lease is either terminated or a sublease or assignment is made as herein provided, Tenant shall reimburse Landlord for all of the necessary administrative, legal and accounting services required in order to accomplish such termination, assignment or subletting in an amount not occupy at least 40,000 r.s.fmore than Five Hundred Dollars ($500.00). The sale or transfer of Tenant's voting stock (if a corporation) or partnership interest (if a partnership) resulting in the transfer of control of a majority of such stock or interest or the occupancy of the Premises after by any successor firm of the date Tenant or by any firm into which or with which the Tenant may become merged or consolidated shall be deemed an assignment of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as requiring the prior written consent of Landlord in accordance with the date of commencement the proposed sublease or assignment; foregoing, provided, however, that Tenant such consent shall have not be required if the right purchaser shall agree to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term become an additional guarantor of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Office Lease (Demandstar Com Inc)
Assignment and Subletting. Not 11.1 Tenant shall not assign, pledge, mortgage or otherwise transfer or encumber this Lease, nor sublet all or any part of the Demised Premises or permit the same to be occupied or used by anyone other than Tenant or its employees without the Landlord's prior written consent, which consent of shall not be unreasonably withheld or delayed. It will not be unreasonable for Landlord to assign withhold its consent if the reputation, financial responsibility, or business of a proposed assignee or subtenant is unsatisfactory to Landlord in Landlord's reasonable business judgment, or if the intended use by the proposed assignee or subtenant conflicts with any commitment made by Landlord to any other tenant in the Building, or if the proposed rental rate is lower than the then current rate at which similar space in the Building is being offered by Landlord, or if the proposed subletting would increase the total number of subtenants in the Demised Premises to more than two (2). Landlord's acceptance of any name submitted by Tenant, an agent of Tenant, or anyone acting by, through or under Tenant for the purpose of being listed on the Building directory will not be deemed, nor will it substitute for, Landlord's consent, as required by this Lease, to make any sublease, assignment, or to permit other occupancy of the Demised Premises or any part thereof by anyone other than Tenant or Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any 's employees.
11.2 Tenant's request by Tenant for consent to any sublet or assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint in writing and several with shall contain the assignee); no consent to any name, address, and description of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any business of the proposed assignment assignee or subletting is required both as to subtenant, its most recent financial statement and other evidence of financial responsibility, its intended use of the Demised Premises, and the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premisessubletting. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 Within thirty (30) days after from receipt of such request, Landlord shall either: (1) grant or refuse consent; or (2) elect to require Tenant (a) to execute an assignment of lease or sublease of Tenant's interest hereunder to Landlord or its designee upon the same terms and conditions as are contained herein, together with an assignment of Tenant's interest as sublessor in any such proposed sublease, or (b) if the request is for consent to a proposed assignment of this Lease, to terminate this Lease and the term hereof effective as of the date last day of commencement the proposed sublease third month following the month in which the request was received.
11.3 Each assignee hereunder shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for all payments and for the due performance of all terms, covenants, conditions and provisions herein contained on Tenant's part to be observed and performed. No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in form and substance reasonably satisfactory to Landlord containing a covenant of assumption by the assignee, but the failure or assignment; provided, however, refusal of assignee to execute and deliver the same shall not release assignee from its liability as set forth herein. It is mutually agreed by Landlord and Tenant that Tenant shall have not realize any profit or additional consideration or rent in excess of the Fixed Rent or Additional Rent payable by Tenant hereunder, which is payable to Tenant as a result of any assignment or subletting. All the foregoing notwithstanding, Tenant shall not enter into any lease, sublease, license, concession or other agreement for the use, occupancy or utilization of the Demised Premises or any portion thereof, which provides for a rental or other payment for such use, occupancy or utilization based in whole or in part on the income or profits derived by any person from the property leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales). Any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right to rescind any such request or interest in the event possession, use or occupancy of any part of the Demised Premises.
11.4 Any consent by Landlord elects to so terminate hereunder shall not constitute a waiver of strict future compliance by Tenant with the provisions of this Article 11 or a release of Tenant from the full performance by Tenant of any of the terms, covenants, provisions, or conditions in this Lease contained.
11.5 For purposes of this Article 11, any transfer or change in control of Tenant (or any subtenant, assignee or occupant) by notice given to Landlord within five (5) days after the date operation of such termination notice from Landlord, in which event such termination notice law or otherwise shall be of no further force deemed an assignment hereunder, including, without limitation, any merger, consolidation, dissolution or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity controlling equity interests of Tenant (or any of the persons then having power to participate subtenant, assignee, or occupant), whether in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation single transaction or a trust) and there shall occur any change in the identity series of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing related transactions.
11.6 The provisions of this Section 5.2.1, Article 11 to the contrary notwithstanding. Tenant may assign this Lease or sublet all, but not less than all, of the Demised Premises, without Landlord's consent, but with prior notice to Landlord at any portion time during the term of this Lease, to any Affiliate (as defined below) of Tenant, or to the surviving corporation in connection with a merger, consolidation, sale or acquisition of all, or substantially all, of the Premises without Landlord's consent to (i) any successor and the other assets of Tenant resulting from an acquisition of Tenant, or all or substantially all of the stock of Tenant's assets , with or a by any other company PROVIDED (i) such assignee or sublessee or surviving corporation continues to operate the business conducted in the Premises in substantially the same manner as Tenant and pursuant to all of the provisions of this Lease; (ii) the net-worth of the assignee, sublessee, or surviving corporation on the date of the proposed assignment, sublease, merger or consolidation shall be sufficient in Landlord's reasonable business judgment to fulfill the obligations of this Lease, evidence of which shall be delivered to Landlord prior to such assignment, subletting, merger or acquisition; (iii) such assignee, sublessee, or surviving corporation shall assume in writing all of Tenant's obligations hereunder and Tenant shall provide Landlord with a copy of such writing; and (iv) Tenant (if Tenant continues to exist in any form after said merger, consolidation or acquisition) continues to remain liable on this Lease for the performance of all terms including, but not limited to, the payment of Rent and other sums due under this Lease. Such Affiliate or surviving corporation shall be referred to in this Lease as a "Permitted Assignee." For purposes hereof, an "Affiliate" of Tenant shall be any entity which controls, is controlled by, or is under common control with, Tenant. For purposes hereof, "control" shall be deemed to mean the ownership of not less than fifty percent (50%) of all voting stock of a corporation or not less than fifty percent (50%) of all legal or equitable interest in any other entity. In addition to the foregoing, Landlord's consent shall not be required with regard to, and Landlord may not elect to terminate this Lease solely as a result of, any transfer of any shares of stock between and among the current shareholders of Tenant and their immediate families for estate planning purposes to those persons or to any trust for their benefit, so long as no such transfer effects (iion its own or together with all other transfers) a change in the control of Tenant, nor shall any Affiliate consent be required for the "taking private" of the corporation. Furthermore, Tenant may, without Landlord's consent engage in any public offering of the stock of Tenant (pursuant to the Securities Act of 1933 and/or the Securities and Exchange Act of 1934, as hereinafter defined) whose net worth is equal to or greater than the net worth of amended. Tenant as shall, nevertheless, give Landlord prior notice of the date hereofoccurrence of any of the above described transactions to the extent such prior notice is permitted by applicable law. Otherwise, provided that Tenant provides shall give Landlord at least such notice within thirty (30) days prior notice of following such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantoccurrence.
Appears in 1 contract
Sources: Lease Agreement (Immunicon Corp)
Assignment and Subletting. Not (a) Tenant may not, without the Landlord's prior written consent consent, except as specified in subparagraph 11(i) below;
(1) assign or transfer this Lease or any interest therein;
(2) permit any assignment of Landlord to assign this Lease, to make Lease or any sublease, or to permit occupancy interest therein by operation of law; (3) sublet the Leased Premises or any part thereof thereof; (4) grant any license, concession, or other right of occupancy of any portion of the Leased Premises; (5) mortgage, pledge, or otherwise encumber its interest in this Lease; or (6) permit the use of the Leased Premises by anyone any parties other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal Tenant and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceits employees. Landlord's consent to any proposed assignment, subletting, or reorganization is not a waiver of Landlord's right to approve or disapprove any subsequent assignment, subletting, or reorganization. Tenant and any guarantor of Tenant's obligations under this Lease (GUARANTOR, whether one or more) shall remain jointly and severally liable for the payment of Rent and performance of all other obligations under this Lease after any assignment or subletting subletting. If Tenant is required both as a partnership, Tenant, Guarantor, and the general partners of Tenant prior to its reorganization shall remain jointly and severally liable for the terms payment of Rent and conditions performance of all other obligations under this Lease after any reorganization.
(b) If an Event of Default (defined in Paragraph 27) occurs while the Leased Premises or any part thereof are assigned or sublet, Landlord, in addition to any other remedies under this Lease or provided by law, may at its option collect directly from the assignee or sublessee all rents payable to Tenant under the assignment or sublease and as apply the rent against any sums due to Landlord under this Lease. Tenant authorizes and directs any assignee or sublessee to make payments of rent directly to Landlord upon receipt of notice from Landlord. No direct collection of rent by Landlord from any assignee or sublessee is a novation or a release of Tenant or Guarantor from the consistency performance of their obligations under this Lease or under any guaranty executed by Guarantor. Receipt by Landlord of rent from any assignee, sublessee, or occupant of the proposed assignee's Leased Premises is not a waiver of the covenant against assignment and subletting or subtenant's a release of Tenant or Guarantor.
(c) If Tenant wants to assign or sublease all or part of the Leased Premises, it shall deliver a notice to Landlord specifying the name of, financial information for, and the nature of the business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view or subtenant, and the proposed effective date of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any the assignment or subletting by sublease. Tenant shall may not be unreasonably withheld, provided that assign or sublease all or any part of the Leased Premises at any time when Tenant is not then in default under this Lease, whether or not an Event of Default has occurred.
(d) Landlord has a period of 20 days from receipt of Tenant's notice to notify Tenant that Landlord elects, in Landlord's sole discretion, to:
(1) terminate this Lease and as to the space that such assignee or subtenant pays therefor is the greater subject of Tenant's notice as of the Fixed Rent, Additional Rentdate specified by Tenant, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion if more than thirty percent (30%) of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. Leased Premises, whether through one or more transactions, will be subject to assignments or subleases as a results of the Premises after the date of commencement of such subleaseproposed sublease or assignment, Landlord shall have the optionright to terminate the Lease in its entirety;
(2) consent to the assignment or sublease; provided, exercisable if the rent payable to the Tenant by written notice the sublessee is greater than the Minimum Rent, fifty percent (50%) of the excess rent is payable by Tenant as additional Rent to Landlord on the same dates Tenant given pays Minimum Rent; or
(3) refuse to consent to Tenant's assignment or sublease of that space and to continue this Lease in effect. If Landlord does not notify Tenant of Landlord's election within the 20-day period, Landlord is deemed to elect option (3).
(e) Any change in a majority of the voting rights or other control rights of Tenant is an assignment for purposes of this Paragraph. If Tenant is a partnership, then any transfer of a general partnership interest is an assignment for purposes hereof.
(f) As a condition to the effectiveness of each assignment or subletting, and whether or not Landlord's prior consent is required for the assignment or subletting, Tenant shall pay to Landlord its reasonable administrative and legal costs in connection therewith, not to exceed $1,000.
(g) Any attempted assignment or sublease by Tenant or any attempted reorganization of Tenant in violation of the terms of this Paragraph is void.
(h) Tenant may not enter into any sublease, license, concession or other agreement for any use, occupancy or utilization of the Leased Premises that provides for a rental or other payment for the use, occupancy, or utilization based in whole or in part on the net income or profits derived by any person from the premises so leased, used, occupied, or utilized.
(i) Tenant may, without the prior consent of Landlord, sublet all or any part of the Leased Premises to an Affiliate (defined below), or assign this Lease to an Affiliate, so long as (i) Tenant provides Landlord a copy of the sublease or the assignment within 10 days after receipt its execution, (ii) the transaction was not entered into as a subterfuge to avoid the obligations and restrictions of such requestthis Lease, (iii) the assignee or sublessee is engaged in a business customarily acceptable for a tenant in a first-class high-rise building in Dallas, Texas, (iv) the assignee's or sublessee's proposed use of the Leased Premises does not violate this Lease, and (v) the assignee's or sublessee's net worth, creditworthiness and financial standing is equal to terminate this Lease or better than Tenant's as of the date of commencement such assignment or sublease. Landlord has no obligation to recognize an Affiliate as the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate tenant under this Lease unless Landlord timely receives a complete copy of the assignment or sublease. Tenant and Guarantor remain jointly and severally liable for the payment of Rent and performance of all other obligations under this Lease after any assignment or subletting to an Affiliate. The term AFFILIATE means any entity that acquires all or part of Tenant, or that is acquired in whole or in part by notice given Tenant, or which entity controls, directly or indirectly, Tenant. For purposes of this subparagraph, CONTROL means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, whether through the ownership of voting securities or by contract or otherwise.
(j) If Landlord within five exercises its termination right set forth in subparagraph 11(d)(1) above, the number of reserved (5if any) days after and unreserved parking spaces allocated to Tenant reduces proportionately, effective as of the date of such termination notice from Landlordtermination.
(k) Notwithstanding the foregoing, in which event such termination notice shall be Landlord will not unreasonably withhold its approval of no further force or effect; If, at any time during the Term an assignment of this Lease, Tenant is:
Lease or a sublease of a portion of the Leased Premises so long as the following conditions are satisfied: (i) the assignee or sublessee is of a corporation kind and type and has a net worth and creditworthiness comparable to other tenants customarily found in or a trust (whether or not having shares of beneficial interest) and there shall occur any change comparable with first-class office buildings in the identity of any of downtown Dallas central business district comparable to the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of TenantBuilding; or
(ii) the assignee or sublessee is engaged in a partnership or association or otherwise riot business customarily acceptable for a natural person (and is not tenant in a corporation or a trust) and there shall occur any change first-class office building in the identity of any downtown Dallas central business district comparable to the Building; (iii) the assignee's or sublessee's proposed use of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall Leased Premises does not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign violate this Lease or sublet any restriction applicable to the Building; (iv) at the time of such assignment or subletting, this Lease is in full force and effect and there is no uncured Event of Default; (v) the assignee or sublessee shall not use the Leased Premises or the Building in a manner that adversely interferes with, burdens the use of or otherwise increases the use of the public areas of the Project, any Building system, or the use of the elevators or any Building system; and (vi) in no event shall the following be considered as suitable assignees or sublessees under this Lease: any governmental body, agency or bureau (of the United States, any state, county, municipality or any subdivision thereof); any foreign government or subdivision thereof; any health care professional or health care service organization; schools or similar organizations; employment agencies; radio, television or other communication stations; restaurants; and retailers offering retail services from the Leased Premises.
(l) Notwithstanding the giving by Landlord of its consent to any sublease or assignment with respect to the Leased Premises, no sublessee or assignee may exercise any renewal options, expansion options, rights of first offer or similar rights under this Lease except in accordance with a separate written agreement entered into directly between such sublessee or assignee and Landlord, provided Tenant continues to be liable for the performance of all obligations hereunder, as increased or otherwise affected by the exercise of such rights. Tenant may not exercise any renewal options, expansion options, rights of first offer or similar rights under this Lease if Tenant has assigned any portion of its interest in this Lease or subleased any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantLeased Premises.
Appears in 1 contract
Sources: Office Lease (Penson Worldwide Inc)
Assignment and Subletting. Not Subject to the terms set forth herein, Tenant shall not assign, transfer, mortgage or encumber this Lease nor sublet the whole or any part of the Premises without First obtaining Landlord's written consent, which consent may be withheld or conditioned in Landlord's sole reasonable discretion. Any consent granted by Landlord shall require that such subtenant or assignee consent to be bound by all of the prior terms and conditions of this Lease. No such assignment or subletting shall relieve Tenant of any liability under this Lease regardless of whether such liability arises by or through Tenant. Assignment or subletting shall not operate as a waiver of the necessity for a written consent to any subsequent assignment or subletting, and the terms of such consent shall be binding upon any person holding by, under or through Tenant Landlord may, at Landlord's election, collect rent directly, from such assignee or subtenant. If Tenant is a corporation, then any transfer of this Lease by operation of law, merger, consolidation or liquidation shall constitute an assignment for the purpose of this Section; provided, whoever, that as long as Tenant is a publicly owned company, Landlord's consent to an assignment of this Lease will not be required as a result of merger, consolidation or liquidation, or any change in the ownership of, or power to vote, the majority or controlling interest of Tenant's outstanding voting stock unless (a) such change is the result of any reorganization or merger by which the Tenant's rights under this Lease are transferred to a subsidiary or affiliate or any other entity in which Tenant has controlling interest (in which case Tenant agrees to guaranty performance under this Lease and upon receipt of such guaranty, an form and content satisfactory to Landlord, Landlord's consent will automatically be deemed to be given) or (b) such change results from Tenant's merger with, or purchase by, any competitor of Landlord. In the event Tenant should desire to assign this Lease, to make any sublease, Lease or to permit occupancy of sublet the Premises or any part thereof by anyone other than Tenanthereof, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, give Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice in advance of the date on which Tenant desires to make such assignment or subletting pursuant to either sublease, which notice shall specify: (a) the name and business of the foregoing clauses proposed assignee or sublessee, (b) the amount and location of the space affected, (c) the proposed effective date and duration of the subletting or assignment, and (d) the proposed rental to be paid to Tenant by such sublessee or assignee. Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (i) to permit Tenant to assign or sublet such space, in which event if the proposed rental rate between Tenant and sublessee is greater than the Rent payable under this Lease, then such excess rental shall be deemed Additional Rent owed by Tenant to Landlord under this lease, and the amount of such excess, including any subsequent increases due to escalation or otherwise, shall be paid by Tenant to Landlord in the same manner than Tenant pays the Rent hereunder and in addition thereto, or (ii). As used herein, ) to withhold consent to Tenant's assignment or subleasing such space and to continue this Lease in full force and effect as to the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantentire Premises.
Appears in 1 contract
Assignment and Subletting. Not without (a) Independent of and in addition to any provisions of the prior written consent of Landlord to assign this Master Lease, including without limitation the obligation to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. obtain Landlord's consent to any assignment, it is understood and agreed that Subtenant shall have no right to sublet the Sublease Premises or any portion thereof or any right or privilege appurtenant thereto. Any assignment by Subtenant without Sublandlord's prior written consent shall be void and shall, at the option of Sublandlord, terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent to assign this Sublease, (ii) the name of the proposed assignment or subletting assignee and evidence reasonably satisfactory to Sublandlord that such proposed assignee is required both as comparable in reputation, stature and financial condition to tenants then leasing comparable space in comparable buildings, and (iii) the terms of the proposed assignment. Sublandlord shall, within thirty (30) days of receipt of such notice, and conditions thereof and as to the consistency of any additional information requested by Landlord concerning the proposed assignee's or subtenant's business with other uses and tenants in financial responsibility, elect one of the Building. In additionfollowing:
(i) Consent to such proposed assignment;
(ii) Refuse such consent, as to any assignee (but not as to any sublessee) Landlord's consent which refusal shall be required as on reasonable grounds; or
(iii) Elect to terminate the Sublease, effective thirty (30) days after Sublandlord delivers notice of its election to Subtenant.
(c) In the event that Sublandlord shall consent to an assignment under the provisions of this Section 18, Subtenant shall pay Sublandlord's reasonable creditworthiness processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted assignment, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sublease. If, for any proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment assignment, Subtenant receives Rent or subletting by Tenant shall not be unreasonably withheldother consideration, provided that Tenant is not then in default under this Lease and that such assignee either initially or subtenant pays therefor over the greater term of the Fixed assignment, in excess of the Rent required by this Sublease, after a deduction for the following: (a) any brokerage commission paid by Subtenant in connection therewith and (b) any reasonable attorneys' fees in connection with preparing and negotiating an assignment document ("Profit"), then Subtenant shall pay to Sublandlord as additional Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement Fifty percent (50%) of such sublease, Landlord shall have the option, exercisable Profit or other consideration received by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord Subtenant within five (5) days of its receipt by Subtenant or, in the event the assignee makes payment directly to Sublandlord, Sublandlord shall refund Fifty percent (50%) of the Profit to Subtenant after deducting (a) and (b) above.
(d) Occupancy of all or part of the date Sublease Premises by parent, subsidiary, or affiliated companies or a joint venture partnership of Subtenant shall not be deemed an assignment or subletting provided that such parent, subsidiary or affiliated companies or a joint venture partnership were not formed as a subterfuge to avoid the obligation of this Section 18. If Subtenant is a corporation, unincorporated association, trust or general or limited partnership, then the sale, assignment, transfer or hypothecation of any shares, partnership interest, or other ownership interest of such termination notice from Landlordentity, in which event the dissolution, merger, consolidation, or other reorganization of such termination notice shall be of no further force entity or effect; Ifthe sale, at any time during the Term of this Leaseassignment, Tenant is:
(i) a corporation transfer or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any hypothecation of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members assets of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter ifentity, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if be deemed an assignment or sublease subject to the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant18.
Appears in 1 contract
Sources: Sublease Agreement (New Century Equity Holdings Corp)
Assignment and Subletting. Not without Independent of and in addition to any provisions of the prior written consent of Landlord to assign this Lease, including without limitation the obligation to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. obtain Landlord's consent to any assignment or subletting by Tenant sublease, it is understood and agreed that Subtenant shall have the right to assign this Sublease or any interest therein, to sublet the Sublease Premises or any portion thereof or any right or privilege appurtenant thereto, and to suffer or permit any other person (other than agents, servants or associates of the Subtenant) to occupy or use the Sublease Premises, only upon the prior written consent of Sublandlord, which consent shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee conditioned or subtenant pays therefor the greater of the Fixed Rent, Additional Rentdelayed, and all other payments then payable hereunder, of Landlord. Any assignment or the then fair market rent for the Premisessublease by Subtenant without Sublandlord's prior written consent shall be void. If Tenant requests LandlordSubtenant shall advise Sublandlord by notice of (i) Subtenant's consent intent to assign this Lease Sublease or to sublet any portion the Sublease Premises, (ii) the name of the Premises proposed assignee or sublessee and evidence reasonably satisfactory to Sublandlord that such that Tenant shall not occupy at least 40,000 r.s.f. proposed assignee or sublessee is comparable in reputation, stature and financial condition to tenants then leasing comparable space in comparable buildings, and (iii) the terms of the Premises after the date proposed assignment or sublease. Sublandlord shall, within ten (10) business days of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such requestnotice, to terminate this Lease as and any additional information requested by Landlord concerning the proposed assignee's or sublessee's financial responsibility, elect one of the date following: Consent to such proposed assignment or sublease; or Refuse such consent, which refusal shall be on reasonable grounds. In the event that Sublandlord shall consent to an assignment or sublease under the provisions of commencement this Section 16, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent. Notwithstanding any permitted assignment or sublease, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Subtenant under the proposed sublease or assignment; providedSublease and for compliance with all obligations under the terms, howeverprovisions and covenants of the Sublease. Notwithstanding anything to the contrary contained herein, that Tenant Subtenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease Sublease or sublet to sublease all or any portion of the Sublease Premises without the consent of Sublandlord (but only after having obtained the consent of Landlord's , if such consent is required under the terms of the Lease) to (i) any successor of Tenant resulting from an acquisition of entity controlling, controlled by or under common control with Subtenant and to any entity acquiring all or substantially all of TenantSubtenant's assets or a merger any entity in which or consolidation with which Subtenant is merged or consolidated ("Permitted Transfers"). Notwithstanding anything to the contrary contained herein and in addition to Subtenant's right to assign this Sublease and sublet the Sublease Premises pursuant to Permitted Transfers as provided above, Sublandlord agrees that Subtenant may permit portions of Tenant the Sublease Premises to be used by any persons or entities with whom Subtenant regularly conducts business, including without limitation, business consultants and regulators ("Approved Users") without separate prior written consent of Sublandlord, provided that (i) Subtenant does not separately demise the space used by the Approved Users, (ii) the Approved Users and Subtenant shall use common entryways to the Sublease Premises as well as certain shared central services, such as reception, photocopying and the like; and (iii) the Approved Users operate their business in the Sublease Premises for the use permitted under this Sublease and for no other purpose. If any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as Approved Users occupy any portion of the date hereofSublease Premises as described herein, provided it is agreed that Tenant provides Landlord at least thirty (301) days prior notice the Approved Users must comply with all provisions of this Sublease; (2) all notices required of Sublandlord under this Sublease shall be sent only to Subtenant in accordance with the terms of this Sublease, and in no event shall Sublandlord be required to send any notices to any Approved Users; (3) in no event shall any such assignment occupancy or subletting pursuant to either use by the Approved Users release or relieve Subtenant from any of its obligations under this Sublease; and (4) the Approved Users and their employees, contractors and invitees visiting or occupying space in the Sublease Premises shall be deemed employees of Subtenant for purposes of Subtenant's indemnification obligations of this Sublease. The occupancy of any portion of the foregoing clauses (i) or (ii). As used hereinSublease Premises by the Approved Users shall not be deemed to create a landlord and tenant relationship between Sublandlord and the Approved Users, and, in all instances, Subtenant shall be considered the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or sole tenant under common control with Tenantthis Sublease.
Appears in 1 contract
Sources: Sublease Agreement (Federal Home Loan Bank of Chicago)
Assignment and Subletting. Not without Tenant shall not assign, transfer or hypothecate the leasehold estate under this Lease, or any interest therein, and shall not sublet the Premises, or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person or entity to occupy or use the Premises, or any portion thereof, without, in each case, the prior written consent of Landlord which consent will not be unreasonably withheld. Landlord shall respond to assign this Lease▇▇▇▇▇▇'s request for consent hereunder with 15 days after receiving the written notice by ▇▇▇▇▇▇. As a condition for granting its consent to any subletting, Landlord may require that Tenant agrees to make pay to Landlord, as additional rent, all rents received by Tenant from its subtenants in excess of the rent payable by Tenant to Landlord hereunder (after first deducting from such excess rent Tenant's reasonable costs and expenses of assigning the lease or subletting all or any subleaseportion of the Premises, including the cost of any special improvements made to the Premises by Tenant specific to said sublease or assignment, reasonable advertising fees, reasonable brokerage fees, reasonable legal fees, the unamortized cost of any alterations or additions made to permit occupancy the Premises which were paid for by Tenant). Tenant shall, by forty five (45) days' written notice, advise Landlord of its intent to sublet the Premises or any portion thereof for any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceterm hereof. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency Upon receipt of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such subleasesaid notice, Landlord shall have the optionmay, exercisable by written notice to Tenant given within 10 days after receipt of such requestin its sole discretion, elect to terminate this Lease as of to the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises described in Tenant's notice on the date specified in Tenant's notice. If Tenant intends to sublet the entire Premises and Landlord elects to terminate this Lease, this Lease shall be terminated on the date specified in Tenant's notice. If, however this Lease shall terminate pursuant to the foregoing with respect to less than all the Premises, the rent, as defined and reserved hereinabove shall be adjusted on a pro-rata basis to the number of square feet retained by Tenant, and this Lease as so amended shall continue in full force and effect. In the event Tenant is allowed to assign, transfer or sublet the whole or any part of the Premises, with the prior written consent of Landlord, no assignee, transferee or subtenant shall 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 of Landlord. 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 to be deemed to be a consent to any subsequent similar or dissimilar assignment, transfer, hypothecation, subletting, occupation or use by 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 ▇▇▇▇▇▇'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. Tenant may, without Landlord's consent prior written consent, sublet the Premises or assign the Lease to (ia) any a subsidiary, affiliate or corporation controlling, controlled by or under common control with Tenant, (b) a successor corporation related to Tenant by merger, consolidation, nonbankruptcy, reorganization, or government action, or (c) a purchases of Tenant resulting from an acquisition of all or substantially all of Tenant's assets located in the Premises. A sale or a merger transfer of Tenant's capital stock shall not be deemed an assignment, subletting or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as other transfer of the date hereof, provided that Lease or the Premises. Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate shall in these instances remain fully liable for their performance of Tenant" shall mean and refer to any entity controlled by, controlling or 's obligations under common control with Tenantthe Lease.
Appears in 1 contract
Sources: Landlord's Consent to Assignment of Lease (Idealab)
Assignment and Subletting. Not without the prior written consent of Landlord to Sublessee shall not assign this LeaseSublease or sublet the demised premises or otherwise transfer, to make any subleasemortgage or encumber this Sublease, or to permit occupancy of the Premises demised premises or any part thereof by anyone other than Tenant, voluntarily or by operation permit the use thereof without first complying with the provisions of law, except as hereinafter provided; as Additional Rent, to reimburse the Underlying Lease and obtaining Sublessor's consent. Sublessor's consent shall not be unreasonably withheld if the written consent of the Underlying Landlord promptly for reasonable legal is first obtained and other expenses incurred by Landlord in connection with any request by Tenant for consent to said assignment or subletting of the entire demised premises is to one (subject 1) assignee or subtenant for its undivided occupancy. Sublessor shall not be required to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlordsuch assignment or further subletting or other event for which Sublessor's consent is required pursuant to any proposed the Underlying Lease if Sublessee is then in default under the Sublease of if such further subletting or assignment would cause Sublessor to be in default under the Underlying Lease. No such consent shall relieve Sublessee from the obligation to seek consent to a further subletting or assignment or subletting another event for which Sublessor's consent is required both as pursuant to the terms Underlying Lease, and conditions thereof Sublessor may withhold its consent to same in its sole and as to absolute discretion. Copies of all materials required by the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent Underlying Lease shall be required as delivered simultaneously to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing Sublessor, together with Sublessee's request for leases having terms consent. If Underlying Landlord and conditions comparable to this Lease. Landlord's Sublessor shall give their consent to any assignment of this Sublease or subletting by Tenant shall not be unreasonably withheldany subsublease, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from LandlordSublessee shall, in which event such termination notice shall be of no further force or effect; Ifconsideration therefor, at any time during the Term of this Leasepay to Sublessor, Tenant isas additional rent:
(i) a corporation In the case of an assignment, an amount equal to 50% of all sums and other consideration paid to Sublessee by the assignee for or a trust (whether or not having shares by reason of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; orsuch assignment.
(ii) In the case of a partnership subsublease, 50% of any rents, additional rents or association other consideration payable under the subsublease or otherwise riot to Sublessee by the subsubtenant which are in excess of the fixed annual rent and additional rent accruing during the term of this Sublease in respect of the subsubleased space (at the rate per square foot payable by Sublessee hereunder) pursuant to the terms hereof. The sums payable under this Paragraph 12 shall be paid to Sublessor as and when payable by the subsubtenant. If this Sublease be assigned, or if the demised premises or any portion thereof be underlet or occupied by anybody other than Sublessee, Sublessor may, after default by Sublessee, collect rent from the assignee, undertenant 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 natural person (and is not a corporation waiver of this covenant, or the acceptance of the assignee, undertenant or occupant as tenant, or a trust) and there shall occur any change in release of Sublessee from the identity of any further performance by Sublessee of the persons who then are members covenants on the part of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate Sublessee herein contained. Anything to the contrary contained in this Lease by notice to Tenant given within 90 days thereafter ifArticle 12 notwithstanding, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant Sublessee may assign this Lease Sublease or sublet sublease all or any portion of the Subleased Premises without Landlord's consent to an entity which is controlled by, or which controls, or which is under common control, with Sublessee or in connection with a restructuring of Sublessee or its business (i) including by merger or consolidation), or to any successor entity on or in connection with a sale of Tenant resulting from an acquisition Sublessee 's business (by sale of stock or assets), all with the Sublessor's approval and consent, not to be unreasonably withheld or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereofdelayed, provided that Tenant the character and finances of the assignee or lessee are reasonably satisfactory to Sublessor and consistent with the first-class nature of the Building, and Sublessee provides Landlord at least thirty (30) days prior notice Sublessor with a copy of such the assignment or subletting pursuant sublease prior to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.effective date
Appears in 1 contract
Sources: Sublease Agreement (Bolt Inc)
Assignment and Subletting. Not (a) Tenant shall not, either voluntarily or by operation of law, assign, hypothecate or transfer this Lease, or sublet the Premises or any part thereof, without the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent each instance. Landlord's consent is governed by the provisions of Subsection 8(c) below.
(b) In the event Tenant desires to assign, hypothecate or otherwise transfer this Lease or sublet the Premises, then at least 10 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, verification that the proposed assignee or sublessee's use is not inconsistent with permitted uses hereunder, information (including references) concerning the character, ownership, and financial condition of the 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 sublease, all in such detail as Landlord shall reasonably require. If Landlord requests additional detail, the Assignment Notice shall not be deemed to have been received until Landlord receives such additional detail and Landlord may withhold consent to any assignment or sublease until such information is required both as provided to it.
(c) Landlord shall not unreasonably withhold or delay consent to any subletting, assignment, hypothecation or transfer of this Lease; however, the terms and conditions thereof and as to the consistency parties agree that if Landlord withholds consent based upon Landlord's disapproval of the proposed assignee's or subtenant's business financials, or the proposed assignee's or subtenant's incompatible use of the Building (including restrictions in other tenant's leases), or Tenant's rental rate being below fair market rate (without an appropriate increase in rate being paid by Tenant to Landlord) such withholding of consent shall not be deemed unreasonable. The subletting of substantially all of the premises for all or any part of the remaining term of this Lease shall be deemed an assignment rather than a sublease for purposes of this clause. Notwithstanding the foregoing, Landlord shall consent to the assignment or transfer, if the Assignment Notice states that Tenant desires to assign the Lease to Tenant's parent or a wholly-owned subsidiary of Tenant or such parent or to any entity into which Tenant is merged, with which Tenant is consolidated or which acquired all or substantially all of the assets of Tenant, provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease which Tenant has agreed to keep, 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 immediately prior to the assignment.
(d) If Tenant shall sublet all or any portion of the Premises that Tenant has occupied for its own use at any time, then any net consideration paid by the sublessee (i.e., after deducting Tenant's reasonable legal, marketing, tenant improvement and other uses costs) for the portion of the Premises being sublet that previously was occupied by Tenant that exceeds 110% of the Basic Rent and tenants rental adjustments provided by this Lease for such portion of the Premises being sublet shall be due, owning and payable from Tenant to Landlord when paid or owing by the sublessee under the sublease. The parties intend that the preceding sentence shall not apply to any sublease rentals respecting a portion of the Premises that, during the entire term of this Lease, was not occupied by Tenant for its own use, but was always subleased by Tenant and/or kept vacant. For the purpose of this section, the rent for each square foot of floor space in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent Premises shall be required as to the reasonable creditworthiness deemed equal.
(e) Any sale, assignment, hypothecation or transfer of this Lease or subletting of the proposed assignee Premises that is not in view compliance with the provisions of market conditions then prevailing for leases having terms this Section shall be void and conditions comparable to shall, at the option of Landlord, terminate this Lease. Landlord's The consent by Landlord to any assignment or subletting shall not be construed as relieving Tenant or any assignee of this Lease or sublessee of the Premises from obtaining the express written consent of 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 any assignment or subletting by sublease, Tenant shall pay Landlord as Additional Rent a reasonable fee for costs incurred in connection herewith, including but not limited to costs for attorneys, accountants, architects, tenant improvement oversight and administration. This Section shall be unreasonably withheldfully applicable to all further sales, provided that Tenant is not then in default under this Lease hypothecations, transfers, assignments and that such assignee or subtenant pays therefor the greater subleases of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. by any successors or assignee of Tenant, or any sublessee of the Premises after the date Premises. The term "assign," as used herein, shall include (i) an assignment of commencement a part of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request interest in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur as well as any change in the identity of any of the persons then having power assignment from one co-tenant to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenantanother; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) an assignment to any Affiliate prior owner of the Tenant's interest herein or part thereof. Landlord's consent shall not be required if any of the stock (or the securities) of Tenant are sold, transferred or otherwise conveyed (as hereinafter definedbut Tenant shall give Landlord written notice if there occurs one or more sales or transfers within a twelve (12) whose net worth is equal to month period, by operation of law or greater than the net worth otherwise, or creation of Tenant new stock, by which an aggregate of fifty percent (50%) or more of Tenant's voting stock shall be vested in a party or parties who are nonstockholders as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Office Building Lease (Coinstar Inc)
Assignment and Subletting. Not without Without the prior written consent of Landlord to assign this Lease------------------------- Landlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee to assign, transfer, mortgage or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign pledge this Lease or to sublet grant a security interest in Tenant's rights hereunder, or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) or permit anyone other than Tenant to occupy all or any portion part of the Premises such that Tenant shall not occupy at least 40,000 r.s.for 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. of Without limiting the Premises after the date of commencement of such subleaseforegoing, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request not be deemed unreasonable in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:withholding its consent if
(i) a corporation any defaults then existing with respect to the obligations of Tenant under this Lease shall not have been cured, or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) in the case of a partnership proposed assignment, sublease or association occupancy by another, the proposed assignee, sublessee, or otherwise riot a natural person (and occupant is not a corporation credit worthy or a trust) and there shall occur any change not qualified to do business in the identity state in which the Premises are located or such assignee, sublessee, or occupant does not execute and deliver to Landlord an agreement satisfactory to Landlord by which such assignee, sublessee or occupant shall be bound by and shall assume all the obligations of any Tenant under this Lease relating to the portion or all of the persons who then are members Premises acquired by such assignee, sublessee or occupant. 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, in excess of the rent called for hereunder, or in case of sublease of part of the Premises, in excess of such partnership or association or who comprise Tenant; rent fairly allocable to the part so subleased, after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account, Tenant shall so notify Landlord and Landlord may terminate pay to Landlord, as Additional Rent, fifty (50%) percent of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. For the purposes of this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgmentSection 5.2.1, the credit transfer in the aggregate in any one year of 10% or more in interest in Tenant (whether stock, partnership interest or other form of ownership or control) by any person or persons having an interest in ownership or control of Tenant is thereby impairedshall be deemed an assignment of this Lease. This paragraph The preceding sentence shall not apply if to changes in the percentage ownership of the initial Tenant named herein if such initial Tenant is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions Any attempted assignment, transfer, mortgage, pledge, grant of this Section 5.2.1security interest, Tenant may assign this Lease sublease or sublet other encumbrance shall be void. No assignment, transfer, mortgage, grant of security interest, sublease or other encumbrance, whether or not approved, and no indulgence granted by Landlord to any portion of the Premises without Landlord's consent to (i) assignee, sublessee or occupant shall in any successor of Tenant resulting from an acquisition of all or substantially all of way impair Tenant's assets or a merger or consolidation of Tenant and continuing primary liability (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such which after an assignment or subletting pursuant shall be joint and several with the assignee or sublessee) of Tenant hereunder, and no approval in a particular instance shall be deemed to either be a waiver of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer obligation to obtain Landlord's approval in any entity controlled by, controlling or under common control with Tenantother case.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord (A) Tenant shall not be allowed to (i) assign or otherwise transfer this Lease, to make any sublease, or to ; (ii) permit occupancy of the Premises or any part thereof to be used by anyone other than Tenant, voluntarily ; (iii) sublet the Premises or by operation of law, except as hereinafter providedany portion thereof; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment iv) pledge or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment otherwise encumber this Lease or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants Tenant’s interest in the Building. In additionPremises, as to any assignee (but not as to any sublessee) in each instance without obtaining Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant ’s prior written consent, which shall not be unreasonably withheld, provided that Tenant is conditioned or delayed.
(B) Any subletting hereunder shall not then be deemed to vest in default under this Lease and that such assignee or any subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign any interest in this Lease or to sublet any portion of the Premises such that Tenant nor shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such requestany subletting or, to terminate this Lease as the extent permitted by law, assignment release or impair the named Tenant from any of the date of commencement the its obligations hereunder, unless otherwise agreed in writing by both parties. Any proposed sublease or assignment; providedinstrument of assignment with respect to a transaction approved (or deemed approved) by Landlord shall be in form and substance reasonably satisfactory to Landlord, however, that Tenant and certified copies of all approved (or deemed approved) subleases or instruments of assignment shall have the right be promptly delivered to rescind any such request in Landlord. In the event that Landlord elects consents to so terminate this Lease by notice given a proposed assignment or sublease, and Tenant fails to execute and deliver the assignment or sublease to which Landlord consented within five (590) days after the date giving of such termination notice from Landlordconsent, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice again be required to Tenant given within 90 days thereafter if, in request Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign ’s consent before assigning this Lease or sublet any portion subletting all or part of the Premises without Premises. Unless expressly consented to by Landlord's consent to (i) , neither Tenant nor the Guarantor under the Guaranty shall not be released from its obligations hereunder or thereunder as a result of any successor permitted subletting, assignment, merger, consolidation, sale or transfer of Tenant resulting from an acquisition of all or substantially all of Tenant's ’s or Guarantor’s assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as substantially all of the date hereof, provided that ownership interests in Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) Guarantor or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling other transaction permitted hereunder or under common control with Tenantthereunder.
Appears in 1 contract
Assignment and Subletting. Not Tenant will not assign this lease, or allow same to be assigned by operation of law or otherwise, or sublet the demised premises or any part thereof without the prior written consent of Landlord. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the rent herein specified 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" as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided or provided by law, may at its option collect directly from such assignee or subtenant all rents becoming due to Tenant under such assignment or sublease and 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. If Tenant shall propose to sublet or assign this Lease, it shall so notify Landlord in writing not lease than thirty (30) days prior to make any sublease, or to permit occupancy the date of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to subletting, such notice setting forth the terms and conditions thereof and as to the consistency name of the proposed subtenant or assignee's or subtenant's business with , the term, use, rental rate and other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness particulars of the proposed subletting or assignment, including without limitation, proof satisfactory to Landlord that the proposed subtenant or assignee in view is financially responsible and will immediately occupy and thereafter use the entire premises (or any sublet portion thereof) for the remaining term of market conditions then prevailing this lease (or for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater entire term of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, if shorter). Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt in the event of such requestany proposed assignment or subletting, to terminate cancel this Lease lease as of the date the subletting or assignment described in Tenant's notice is to be effective. The option shall be exercised, if at all, by Landlord's giving Tenant written notice thereof within twenty (20) days following Landlord's receipt of commencement Tenant's written request. Upon any such cancellation Tenant shall pay to Landlord all costs or charges which are the responsibility of Tenant hereunder, and Tenant shall, at Tenant's own cost and expense, discharge in full any outstanding commission obligation on the part of Landlord with respect to this lease. Further, upon any such cancellation Landlord and Tenant shall have no further obligations or liabilities to each other under this lease, except with respect to obligations or liabilities which accrue hereunder, as of such cancallation date in the same manner as if such cancellation date were the date originally fixed for the expiration of the term hereof. Without limitation, Landlord may lease the premises to the prospective subtenant or assignee, without liability to the Tenant. Landlord's failure to exercise any right hereunder shall not waived Landlord's right as to any subsequent proposed sublease or assignment, nor shall any such failure be deemed to constitute Landlord's approval of the proposed sublease or assignment; provided. If Landlord does not cancel this lease, howeverLandlord agrees to approve any assignment by Tenant to any corporation succeeding to substantially all the business and assets of Tenant by merger, that Tenant consolidation, purchase of assets or otherwise, or to any assignment or subletting to a corporation which is an affiliate of Tenant. In other cases, Landlord agrees not to unreasonably withhold approval of any proposed subletting or assingment as to which Landlord declines its rights of cancellation hereunder provided such proposed transaction is consummated within thirty (30) days after Landlord's refusal or failure to so recapture, and upon the same terms and conditions disclosed to Landlord in Tenant's notice, and with another financially responsible party whose use of the demised premises will not depreciate the value of the premises, or the value of the property adjacent thereto, or will not be extra hazardous with reference to the risk of fire or other hazards. Any assignment or subletting without Landlord's approval, where required hereunder, shall be void and of no effect. Landlord shall have the right to rescind transfer and assign, in whole or in part, any such request of its rights under this lease, and in the event Landlord elects Building and property referred to so terminate this Lease by notice given herein; and to Landlord within five (5) days after the date of extent that such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in assignee assumes Landlord's reasonable judgmentobligations hereunder, the credit of Tenant is thereby impaired. This paragraph Landlord shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice by virtue of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantbe released from such obligations.
Appears in 1 contract
Sources: Lease Agreement (Tekgraf Inc)
Assignment and Subletting. Not Tenant may assign, sublet or transfer this Lease to any person, firm or corporation with the written consent of Landlord which consent shall not be unreasonably withheld, provided, however, that no such assignment, sublease or transfer shall act as a release of Tenant from any of the obligations and agreements on its part to be kept and performed hereunder. Any assignment, sublease or transfer without the prior written consent of Landlord to assign this Leaseshall be null and void at Landlord’s option. Landlord’s approval of any subtenant or assignee is conditioned upon there being no additional compliance required with any laws, to make rules and regulations of any sublease, governmental authority required of either the Landlord or to permit occupancy the Tenant and such approval shall create no responsibility or liability on the part of the Premises or Landlord for any part thereof by anyone other than Tenantnon-compliance with laws, voluntarily or by operation rules and regulations of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant governmental authority. Request for consent to assign Tenant’s interest or to sublease the Premises shall be accompanied by a statement setting forth the name of the prospective assignee or sublessee, the financial details of the assignment or subletting sublease (subject to i.e. the provisions of Section 5.1.12 hereofrental and security deposit); no assignment or subletting shall affect , the continuing primary liability of Tenant (whichterm, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of relevant information concerning the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Leaseor sublessee. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given right within 10 ten (10) days after receipt of such requestwritten request from Tenant to (A) withhold consent to the assignment or sublease if the withholding of such consent is reasonable, or (B) consent to such sublease or Assignment, in which case any rent payable by the assignee or sublessee (including any lump sum of additional payment or other consideration for the assignment or sublease) which exceeds the rent payable by Tenant hereunder shall be shared fifty percent (50%) by Tenant and fifty percent (50%) by Landlord, or (C) terminate this Lease Lease, effective as of the commencement date of commencement the proposed term of such sublease or assignment; provided, however, that Tenant the effective date of such assignment in which case Landlord shall have the right to rescind any enter into a direct Lease with such request in the event proposed assignee or sublessee. If Landlord elects to so terminate the Lease, then this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) canceled and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant terminated as of the effective date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such the proposed assignment or subletting pursuant to either the commencement date of the foregoing clauses (i) or (ii). As used hereinproposed sublease, the term "Affiliate of as set forth in Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant’s notice.
Appears in 1 contract
Assignment and Subletting. Not It is understood and agreed that Landlord ------------------------- may fully assign its interest in this Lease as Landlord. Tenant shall not either voluntarily or by operation of 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 thereto or allow any person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises or any portion thereof without the prior written consent of Landlord. Landlord reserves the right to assign recapture the Premises, or applicable portions thereof, in lieu of giving its consent by notice given to Tenant within fifteen (15) days after receipt of Tenant's request for assignment or subletting and delivery of all reasonable information or any such assignee or subtenant as requested by Landlord. Such recapture shall terminate this Lease as to the applicable space effective on the prospective date of the assignment or subletting, which shall be the last day of a calendar month and not earlier than sixty (60) days after receipt of Tenant's request for assignment or subletting and delivery of all reasonable information on any such assignee or subtenant as requested by Landlord. If Landlord elects not to recapture and thereafter gives its consent, Landlord and Tenant agree that Landlord may charge Tenant a reasonable sum to reimburse Landlord for legal and administrative costs incurred in connection with such consent; and that from the date of such assignment or sublease of this Lease, to make Landlord shall receive any subleaserental, fees, and other proceeds payable by such subtenant or to permit occupancy assignee in excess of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation rent to be paid to Landlord under the terms of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to this Lease. Any such assignment or subletting (subject without compliance with the terms of this paragraph shall be void and shall, at the option of Landlord, constitute a default under the terms of this Lease. If Tenant is a corporation, any transfer of this Lease from Tenant by merger, consolidation, or liquidation or any change in the ownership or power to vote in the provisions majority of Section 5.1.12 hereof); no the outstanding voting stock of Tenant shall constitute an assignment for purposes of this paragraph. If Tenant is a partnership, any change in the individuals or entities of which the partnership is composed shall constitute an assignment for purposes of this paragraph. 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. Consent to any such assignment or subletting shall affect the continuing primary in no way relieve Tenant of any liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to under this Lease. Landlord's consent Landlord may assign the rental herein provided to any assignment person, partnership, corporation, or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rentbank, and all other payments then payable hereunder, or Tenant agrees when notified in writing by the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice assignee of such assignment or subletting pursuant to either make the rental payments to assignee under the terms of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsaid assignment.
Appears in 1 contract
Sources: Lease (Peerless Systems Corp)
Assignment and Subletting. Not a. Except as provided in Section 21(b), Tenant shall not assign this Lease without the prior written consent of Landlord to assign this LeaseLandlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheld, provided that subsequent to any assignment Tenant is not then in default shall remain primarily liable for the rental to be paid under this Lease and that such assignee or subtenant pays therefor the greater performance of the Fixed Rent, Additional Rent, all terms and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term conditions of this Lease, Tenant is:
(i) a corporation or a trust (. In evaluating whether or not having shares of beneficial interest) and there to provide consent to a proposed assignment or sublease, Tenant, at a minimum, shall occur any change in the identity of any provide to Landlord a copy of the persons then having power proposed assignment or sublease, a current financial statement from the proposed subtenant/assignee, a statement of intended use by the proposed assignee/ subtenant, and such other information as may be reasonably requested by Landlord in evaluating the proposed assignment or sublease. Landlord shall be entitled to participate condition his consent on the agreement of Tenant to share equally any increase in rent over the election or appointment rent stated in this Lease for the duration of the directors, trustees proposed assignment or other persons exercising like functions and managing the affairs of Tenant; orsublease.
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1b. However, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's written consent to if the assignment is made
(i) any to a successor corporation into which or with which Tenant is merged or consolidated in accordance with applicable statutory provisions for the merger or consolidation of corporations,
(ii) to a wholly-owned subsidiary of Tenant, or
(iii) to a corporation to which Tenant resulting from an acquisition of shall sell all or substantially all of Tenant's assets or a assets; and the liabilities of the corporations participating in the merger or consolidation or of Tenant the transferor corporation must be assumed by the corporation surviving the merger or created by the consolidation or by the transferee corporation, in the event of a transfer to a wholly-owned subsidiary or a sale of all or substantially all assets, and that corporation (iiexcept in the case of a wholly-owned subsidiary) any Affiliate of Tenant (as hereinafter defined) whose must have a net worth is at least equal to or greater than the net worth of Tenant as at the time of execution of this Lease. Upon delivery to Landlord, by a successor corporation to which this Lease is assigned or transferred, of the agreement of the corporation to be bound by the terms, covenants, and conditions of this Lease to be performed by Tenant after the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such the assignment or subletting pursuant transfer and documentation satisfactory to either of Landlord demonstrating net worth and operation income, Tenant shall be released and discharged from all obligations later arising under this Lease, except where the foregoing clauses (i) or (ii). As used herein, the term "Affiliate transfer is to a wholly-owned subsidiary of Tenant" .
c. In the event Tenant shall mean and refer assign or sublet the Premises or request the consent of Landlord to any entity controlled byassignment or subletting, controlling or under common control if Tenant shall request the consent of Landlord for any act Tenant proposes to do, then Tenant shall pay Landlord's reasonable attorneys' fees and consultants' fees in connection with Tenantevaluating such requests and/or proposed sublease or assignment.
Appears in 1 contract
Sources: Lease (Heritage Oaks Bancorp)
Assignment and Subletting. Not without the prior written consent of Landlord to Tenant shall not assign this LeaseLease or any ------------------------- interest therein, to make any subleasewhether voluntarily, by operation of law, or to permit occupancy of otherwise, and shall not sublet the Premises or any part thereof except by anyone other than written permission and consent of Landlord being first had and obtained. Consent of Landlord to any such assignment or subletting shall not be unreasonably withheld if: (i) at the time of such assignment or subletting Tenant is not in default in the performance and observance of any of the covenants and conditions of this Lease; (ii) the assignee or subtenant of Tenant shall expressly assume in writing all of Tenant, voluntarily 's obligations hereunder; (iii) Tenant shall provide proof to Landlord that the assignee or by subtenant has a financial condition which is satisfactory to Landlord and Landlord's lender; (iv) the Premises continue to be used solely for the purpose set forth in Paragraph 9.1; (v) in Landlord's opinion the proposed operation of lawthe prospective assignee or subleasee will generate percentage rental at Lease equal that currently paid by Tenant; (vi) the assignee or subtenant is, except in Landlord's opinion, capable of operating such business; and (vii) the assignee or subtenant agrees to pay such additional rent, if any, as hereinafter provided; as Additional RentLandlord desires to charge. In connection with any such assignment or sublease, Tenant or the assignee or subtenant of Tenant shall pay to reimburse Landlord promptly for reasonable any legal and other expenses administrative costs incurred by Landlord in connection approving such assignment or subletting, not to exceed $1,000.00. Any such assignment or sublease, even with the approval of Landlord, shall not relieve Tenant from liability for payment of all forms of rental and other charges herein provided or from the obligations to keep and be bound by the terms, conditions and covenants of this Lease. The acceptance of rent from any request by Tenant for other person shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to the assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instancepremises. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent Consent to any assignment or subletting by Tenant shall not be unreasonably withhelddeemed a Consent to any future assignment or subletting. Any merger, provided that consolidation or transfer of corporate shares of Tenant, if Tenant is not then a corporation, so as to result in default under this Lease and that such assignee or subtenant pays therefor a change in the greater present voting control of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, Tenant by the person or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion persons owning a majority of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after said corporate shares on the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, shall constitute an assignment and be subject to the conditions of this Paragraph. If Tenant is:
(i) is a general partnership having one or more corporations as partners, the provisions of the proceeding sentence shall apply to each of such corporations as if such corporation alone had been the Tenant hereunder. Moreover, in the event that the rental due and payable by a sublessee or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any combination of the persons then having power to participate in the election or appointment of the directors, trustees rental payable under such sublease plus any bonus or other persons exercising like functions and managing consideration therefore or incident thereto exceeds the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign rent payable under this Lease or sublet any portion of if with respect to a permitted assignment, permitted licenses or other transfer by Tenant permitted by Landlord, the Premises without Landlord's consent consideration payable to Tenant by the assignee, licensee or other transferee exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and other excess consideration within ten (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (3010) days prior notice following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee as the case may be. Finally in the event of such any assignment or subletting pursuant it is understood and agreed that all rentals paid to either Tenant by an assignee or sublessee shall be received by Tenant in trust for Landlord, to be forwarded immediately to Landlord without reduction of the foregoing clauses (i) or (ii). As used hereinany kind, the term "Affiliate of Tenant" and upon election by Landlord such rentals shall mean and refer be paid directly to any entity controlled by, controlling or under common control with TenantLandlord.
Appears in 1 contract
Sources: Standard Shopping Center Lease (Intellisys Group Inc)
Assignment and Subletting. Not Tenant shall not have the right to sublet, assign or otherwise transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord which consent shall not be unreasonably withheld or delayed. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublessees and transferees being hereinafter referred to assign as "Transferees"), by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to persons other than Landlord by such Transferees to which Landlord is entitled or is otherwise in contravention of this Paragraph 15. No assignment, subletting or other transfer, whether or not consented to by Landlord or permitted hereunder, shall relieve Tenant of its liability under this Lease, to make any sublease, or to permit occupancy . If an Event of Default occurs while the Premises or any part thereof are assigned or sublet, then Landlord, in addition to any other remedies herein provided or provided by anyone other than Tenant, voluntarily or by operation of law, except may collect directly from such Transferee all rents payable to the Tenant and apply such rent against any sums due Landlord hereunder. No such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant is obligations hereunder. If Landlord consents to any subletting or assignment by Tenant as hereinafter provided; as Additional Renthereinabove provided and any category of rent subsequently received by Tenant under any such sublease is in excess of the same category of rent payable under this Lease, or any additional consideration is paid to reimburse Landlord promptly for reasonable Tenant by the assignee under any such assignment, after deducting from such excess rent or additional consideration, legal fees, broker's fees, tenant finish out costs and other expenses fees incurred by Landlord Tenant in connection with such assignment or subletting, then Landlord may, at its option, declare seventy-five percent (75%) of such net excess rents under any request sublease or such net additional consideration for any assignment to be due and payable by Tenant to Landlord as additional rent hereunder. The following shall additionally constitute an assignment of this Lease by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term purposes of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to Paragraph 15: (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and when Tenant is not the surviving corporation or its shareholders do not constitute at least fifty percent (50%) of the ownership of the consolidated company or in the alternative control the board of directors of the surviving corporation, (ii) any Affiliate a transaction resulting in a change in control of Tenant when fifty percent (as hereinafter defined50%) whose or more of Tenant's outstanding voting stock is sold and the board of directors of Tenant prior to such transaction ceases to be at least a majority of the board of directors after such transaction, and (iii) the sale, transfer, exchange, liquidation or other distribution in excess of fifty percent (50%) of Tenant's assets. Notwithstanding the foregoing, consent will not be required in the event that Tenant transfers the owner, hip of its principal business operation or in excess of fifty percent (50%) of its assets to or merges with a public company or to another entity with a net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not without Notwithstanding anything to the prior written consent of Landlord to assign this contrary contained in the Lease, to make any subleasethe original Tenant hereunder may, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. without Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants consent, assign its interest in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any all or a portion of the Premises such to any affiliate of said original Tenant provided that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust Tenant gives Landlord thirty (whether or not having shares 30) days prior written notice of beneficial interest) such transfer and there shall occur any change in the identity of any delivers to Landlord concurrently with such notice all of the persons then having power to participate information which would otherwise reasonably be required in the election or appointment of the directorsconnection with a request for consent, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or the transaction otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in complies with the identity of any provisions of the persons who then are members of Lease, and (iii) such partnership assignment or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter ifsublease does not, in Landlord's reasonable judgmentopinion, impair Tenant's ability to fulfill its obligations under this Lease. For purposes of the credit preceding sentence, an "affiliate" means any person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, Tenant. In the case of an assignment, one-half of any sums or other economic consideration received by Tenant is thereby impairedas a result of such assignment shall be paid to Landlord after first deducting (i) the cost of any reasonable real estate commissions, legal fees, and other direct and customary costs actually incurred and paid by Tenant in connection with such assignment and (ii) the actual third party costs of any Alterations to the Premises made and paid for by Tenant in connection with such assignment, amortized over the remaining Term of the Lease. This paragraph In the case of a subletting, one-half of any sums or economic consideration received by Tenant as a result of such subletting shall not apply if be paid to Landlord after first deducting (1) the initial Tenant named herein is a corporation and rental due hereunder, prorated to reflect only rental allocable to the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding sublet portion of the foregoing provisions Premises, (2) the cost of leasehold improvements made to the sublet portion of the Premises at Tenant's cost, amortized over the term of this Section 5.2.1Lease except for leasehold improvements made for the specific benefit of the subtenant, which shall be amortized over the term of the sublease, and (3) the cost of any real estate commissions, legal fees and other direct and customary costs actually incurred and paid by Tenant may in connection with such subletting, amortized over the term of the sublease. Without limiting Landlord's other rights under the Lease, upon request by Tenant to assign this Lease or sublet any portion of the Premises without Landlord's consent Premises, Landlord may elect to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant terminate this Lease effective as of the date hereofTenant proposes to assign this Lease or sublet all of the Premises, or in the case of a sublease which, individually or aggregated with previous subleases of the Premises, affects ten thousand (10,000) or more square feet of Rentable Area, terminate this Lease as to the portion of the Premises proposed to be sublet as of the date of such proposed partial sublease (provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either concurrently accelerates the expiration date of the foregoing clauses (i) or (iiTerm of the Lease with respect to the terminated portion of the Premises). As used hereinTenant understands and acknowledges that Landlord's option to terminate the Lease rather than approve the assignment thereof or the subletting of all or any portion of the Premises, is a material inducement for Landlord's agreeing to this Amendment upon the term "Affiliate terms and conditions herein set forth. However, Landlord shall have no right to terminate the Lease under this grammatical paragraph in connection with a proposed assignment of Tenant" shall mean and refer this Lease or a subletting by the original Tenant hereunder to any entity controlled by, controlling or under common control with affiliate (as defined above) of said original Tenant.
Appears in 1 contract
Sources: Office Lease (On Assignment Inc)
Assignment and Subletting. Not to assign, transfer, mortgage or pledge this Lease or to sublease (which term shall be deemed to include the granting of licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate 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, or permit the occupancy of the Premises by anyone other than Tenant without the prior written consent of Landlord Landlord. In the event Tenant desires to assign this LeaseLease or sublet any portion or all of the Premises, Tenant shall notify Landlord in writing (“Tenant’s Transfer Notice”) of Tenant’s intent to make any so assign this Lease or sublet the Premises, the proposed effective date of such subletting or assignment and in connection with a sublease, and the square footage of the proposed sublet space, and shall request in such notification that Landlord consent thereto. Landlord may terminate this Lease (i) in the case of a proposed assignment, or to permit occupancy (ii) in the case of a proposed subletting of more than 50% of the Premises for a term of more than five (5) years or any part thereof for the balance of the Term, by anyone other than giving written notice of termination to Tenant, voluntarily with such termination to be effective as of the effective date of such assignment or subletting. If Landlord elects to exercise its termination right, it shall give written notice thereof to Tenant within ten (10) business days after the date of Tenant’s Transfer Notice and Landlord’s receipt of all information reasonably requested by operation Landlord to evaluate Tenant’s request. If Landlord fails to respond by the expiration of lawsuch 10-day period, except Tenant shall send Landlord a second notice captioned, “SECOND REQUEST FOR CONSENT,” and Landlord’s failure to respond within five (5) business days after receiving Tenant’s second request shall be deemed a waiver of Landlord’s recapture right. If Landlord does not so terminate, or is deemed to have waived its right to terminate, Landlord’s consent shall not be unreasonably withheld, conditioned or delayed with respect to an assignment or to a subletting, provided that the following conditions are met:
(i) the assignee or subtenant shall use the Premises only for the Permitted Uses;
(ii) with respect to a subletting, that after such subletting the initial Tenant named herein occupies at least thirty (30%) percent of the Rentable Floor Area of the Premises;
(iii) the amount of the aggregate rent to be paid by the proposed subtenant is not less than the then current sublease market rate for comparable first class sublease space in the Burlington area;
(iv) the proposed assignee or subtenant is not then a tenant in the Building or the Park, or an entity with which Landlord is actively negotiating or with which Landlord has actively negotiated within the preceding four (4) months regarding the possibility of leasing space in the Building or the Park (as hereinafter providedevidenced by a written proposal, for example); and
(v) the proposed assignee or subtenant is not a Prohibited Occupant as defined under subsection 6.1.2.1. Tenant shall furnish Landlord with any information reasonably requested by Landlord to enable Landlord to determine whether the proposed assignment or subletting complies with the foregoing requirements, including without limitation, financial statements relating to the proposed assignee or subtenant. Tenant shall, as Additional Rent, to reimburse Landlord promptly for Landlord’s reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to such consent. If Landlord consents thereto, no such subletting or assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect in any way impair the continuing primary liability of Tenant (whichhereunder, following assignment, shall be joint and several with the assignee); no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. obligation to obtain the Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants ’s written approval in the Buildingcase of any other subletting or assignment. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing If for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting sublease consented to by Landlord hereunder Tenant shall not be unreasonably withheldreceives rent or other consideration, provided that Tenant is not then in default under this Lease and that such assignee either initially or subtenant pays therefor over the greater term of the Fixed Rentassignment or sublease, Additional Rentin excess of the rent called for hereunder, and or in case of sublease of part, in excess of such rent fairly allocable to the part, after appropriate adjustments to assure that all other payments then payable hereundercalled for hereunder are appropriately taken into account and after first deducting Tenant’s reasonable expenses in connection with the assignment or sublease, including but not limited to marketing expenses, legal fees, brokerage costs, free rent periods, tenant improvements and demising costs to pay to Landlord as additional rent fifty (50%) percent of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Any other provision of this Section 6.2.1 notwithstanding, Tenant shall have the then fair market rent for the Premises. If Tenant requests right, without Landlord's ’s prior written consent and without any right of Landlord to terminate this Lease, to assign this Lease or to sublet any sublease all or a portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of connection with any of the persons then having power to participate in following transactions with an entity (such entity, a “Permitted Transferee”): (A) into or with which Tenant is merged or consolidated (even if the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and Lease is not a corporation or a trust) and there shall occur any change in actually assigned because the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of named Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease surviving entity) or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of which all or substantially all of Tenant's ’s assets or stock are transferred, provided that in any of such events (i) the resulting entity has a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is computed in accordance with generally accepted accounting principles at least equal to or greater than the net worth of Tenant as of the date hereofDate of this Lease, provided that Tenant provides (ii) proof reasonably satisfactory to Landlord of such net worth shall have been delivered to Landlord at least thirty ten (3010) days prior notice after the effective date of any such assignment or subletting pursuant transaction, and (iii) the assignee agrees directly with Landlord, by written instrument in form reasonably satisfactory to Landlord and such assignee, to assume and perform all the obligations of Tenant under this Lease; and (B) which is either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate a parent of Tenant" shall mean and refer to any entity , controlled by, controlling by Tenant or under common control with Tenant, provided the initial named Tenant remains primarily liable under this Lease. “Control” for the purposes hereof shall mean ownership of 50% or more of all financial interest and 50% percent or more of the voting interest. If at any time during the term of this Lease, there is a name change, reformation or reorganization of the Tenant entity, Tenant shall so notify Landlord and deliver evidence reasonably satisfactory to Landlord documenting such name change, reformation or reorganization. If, at any time during the term of this Lease, there is a transfer of a controlling interest in the stock, membership or general partnership interests of Tenant, Tenant shall so notify Landlord and (whether or not Tenant so notifies Landlord) such transfer shall be deemed an assignment subject to the provisions of this Section 6.2.1. The provisions of the immediately preceding sentence shall not apply so long as Tenant is a publicly traded company listed on a recognized securities exchange, nor shall such provisions apply to any privatization of Tenant, provided that the resulting entity has a net worth at least equal to the net worth of Tenant as of the Date of this Lease and proof reasonably satisfactory to Landlord has been delivered to Landlord no later than thirty (30) days after the effective date of such transaction effecting privatization.
Appears in 1 contract
Sources: Office Lease (Dyax Corp)
Assignment and Subletting. Not Tenant may not assign this Lease in whole or in part, nor sublet all or any portion of the Premises, without the prior written consent of Landlord to assign this Leasein each instance, to make any subleasewhich consent shall not be unreasonably withheld, delayed or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by conditioned. If Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint in default of this Lease (beyond any applicable notice and several with the assigneegrace period); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's , Landlord may, until such default is cured, withhold its consent to any proposed assignment or subletting is required both as subletting. In the event that Landlord fails to the terms and conditions thereof and as to the consistency of disapprove the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, Premises within thirty (30) days from and all other payments then payable hereunder, after the date that Landlord receives Tenant's request to assign or the then fair market rent for sublet the Premises, then such assignment or subletting of the Premises shall be deemed to have been approved by Landlord without condition. If Tenant requests Landlord's consent to assign a specific assignment or sublease, Tenant will simultaneously with such requests give Landlord (i) the name and address of the proposed assignee or subtenant, (ii) the terms of the proposed assignment or sublease, and (iii) reasonably satisfactory and complete information about the nature, financial condition, business and business history of the proposed assignee or subtenant, and its proposed initial use of the Premises. 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. If this Lease be assigned, or if the Premises or any part thereof be underlet or occupied by any party other than Tenant, Landlord may collect Rent from the assignee, subtenant or occupant, and apply the net amount collected to sublet any portion 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 Premises such that 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 subletting shall be construed to include prohibition against any assignment or subleasing by operation of law. Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given deliver to Landlord within five twenty (520) days after any assignment or subletting a copy of the date executed assignment or sublease agreement. Any assignment or sublease shall provide that the assignee or subtenant shall comply with all applicable terms and conditions of such termination notice this Lease to be performed by Tenant hereunder. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from Landlordperforming any of the terms, in which event such termination notice covenants and conditions hereof or any Rent or other sums to be paid hereunder. If the Tenant is a corporation whose shares are not publicly traded or is a partnership, if there shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity ownership of any and/or power to vote the controlling interest of Tenant, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, same shall constitute an assignment of this Lease subject to Landlord's consent as above provided. The provisions of this Section shall not apply whenever Tenant or a corporation that owns a majority of the persons then having power to participate stock or ownership interest in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and Tenant is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and other entity the outstanding voting stock thereof of which is listed on a recognized securities stock exchange. Notwithstanding the foregoing provisions of this Section 5.2.1foregoing, Tenant may may, without the approval of Landlord, but with notice to Landlord, assign this Lease Lease, or sublet sublease the Premises, in whole or in part, to: (a) any portion corporation which has the power to direct Tenant's management and operation, or any corporation whose management and operation is controlled by Tenant or Tenant's parent entity; or (b) any corporation a majority of whose voting stock is directly or indirectly owned by Tenant; or (c) any corporation in which or with which Tenant or Tenant's parent entity, its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations, so long as the liabilities of the Premises without Landlord's consent to corporations participating in such merger or consolidation are assumed by the corporation surviving such merger or created by such consolidation; or (id) any successor of Tenant resulting from an acquisition of entity acquiring this Lease and all or substantially all of Tenant's assets assets; any other party or entity so long as the Premises shall continue to be used primarily as a merger Federal or consolidation of Tenant State Chartered savings and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to loan association, savings bank or greater than the bank, provided that such savings and loan association, savings bank or bank has a tangible net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantTen Million Dollars.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord Except as expressly permitted under this Article 23, Tenant agrees not to assign assign, mortgage, or pledge this Lease, to make any sublease, or to permit occupancy of and shall not sublet the Premises or any part thereof by anyone other than Tenantwithout Landlord’s prior written consent, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheld, conditioned or delayed, if Landlord does not elect to terminate this Lease as provided herein. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to select Building tenants having similar leasehold obligations; (2) the proposed transferee’s use is not suitable for the Building considering the business of the other tenants and the Building’s prestige, or would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency or occupant of the Project; (4) Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor after the greater expiration of the Fixed Rent, Additional Rent, notice and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign cure periods in this Lease or to sublet Lease; (5) any portion of the Premises such that or Building would likely become subject to additional or different laws as a consequence of the proposed assignment or subletting or (6) the proposed use or operation in the Premises of the proposed assignee or subtenant may or will cause the Building or any part thereof not to conform with the environmental and green building clauses in this Lease. Tenant shall not occupy be entitled to receive any monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed sublease or assignment and Tenant’s sole remedy shall be an action to enforce any provision through specific performance or declaratory judgment. Any attempted sublease or assignment in violation of this Article shall, at least 40,000 r.s.fLandlord’s option, be void. Any assignment or subletting hereunder shall not release or discharge Tenant of or from any liability under this Lease, and Tenant shall continue to be fully liable thereunder. As part of its request for Landlord’s consent to a sublease or assignment, Tenant shall provide Landlord with financial statements for the proposed transferee, a complete copy of the Premises after the date of commencement of such proposed sublease, assignment and other contractual documents and such other information as Landlord shall have the optionmay reasonably request. Landlord shall, exercisable by written notice to Tenant given within 10 thirty (30) days after of its receipt of such requestthe required information and documentation, either: (1) consent to the sublease or assignment by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the sublease or assignment in writing; or (2) exercise its right to terminate this Lease as with respect to the portion of the date of commencement Premises that Tenant is proposing to sublease or assign. Any such termination shall be effective on the proposed effective date the sublease or assignmentassignment for which Tenant requested consent; provided, however, however that Tenant shall have the right to rescind any such its request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) business days after the date of such termination receipt of Landlord’s notice from Landlordof its exercise of its right to terminate, in which event such termination notice this Lease shall continue in full force and effect. If Tenant shall assign or sublet the Lease or request the consent of Landlord to any assignment or subletting or if Tenant shall request the consent of Landlord for any act Tenant proposes to do, then Tenant shall pay Landlord’s reasonable costs and expenses incurred in connection therewith, including attorneys’, architects’, engineers’ or other consultants’ fees, which fee shall be no less than $500.00. Consent by Landlord to one assignment, subletting, occupation, or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation, or use by another person. Tenant shall pay fifty percent (50%) of no further force all rent and other consideration which Tenant receives as a result of a sublease or effect; If, at any time during the Term of this Lease, Tenant is:
assignment (iother than to a Permitted Transferee) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any that is excess of the persons then having power Rent payable to participate in Landlord for the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without and Lease Term covered by the sublease or assignment. Tenant shall pay Landlord for Landlord's consent to (i) ’s share of any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least excess within thirty (30) days prior notice after Tenant’s receipt of such excess consideration. Tenant may deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to the sublease or assignment (other than Landlord’s costs and expenses), including brokerage fees, legal fees and construction costs. If Tenant is a corporation, an unincorporated association or a partnership, unless listed on a national stock exchange, the transfer, assignment or subletting pursuant hypothecation of any stock or interest in such corporation, association or partnership in the aggregate in excess of fifty percent (50%) shall be deemed an assignment of this Lease. Tenant agrees to either immediately notify Landlord of any change in its ownership. Notwithstanding any provisions of this Lease to the foregoing clauses contrary, Landlord agrees that Tenant may assign its interest in this Lease, without Landlord’s prior written consent but with written notice, to any (i) successor by merger or sale of substantially all of Tenant’s assets (including, without limitation, this Lease) in a manner such that the assignee will become liable and responsible for the performance and observance of all Tenant’s duties and obligations hereunder; or (ii). As used herein) corporation or other entity which controls, the term "Affiliate of Tenant" shall mean and refer to any entity is controlled by, controlling or is under common control with TenantTenant (each, a “Permitted Transferee”), provided that (a) Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such assignment, and (b) the creditworthiness of the assignee measured immediately following such assignment is at least equal to the creditworthiness of Tenant measured immediately prior to such assignment. For purposes of this Article 23, a corporation or other entity will be regarded as in control of another corporation or entity if it both (i) owns or controls in excess of fifty percent (50%) of the voting stock or other ownership interest of the other corporation or entity, and (ii) possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other corporation or entity.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord to Tenant shall not assign this LeaseLease or any interest herein or sublet the Premises or any portion thereof or permit any other person to occupy the Premises or any portion thereof. No assignee for the benefit of creditors, trustee in bankruptcy or purchaser at any execution sale shall have any right to make any sublease, possess or to permit occupancy of occupy the Premises or any part thereof by anyone other than Tenantthereof, voluntarily or by operation claim of lawright hereunder. Notwithstanding the foregoing, except as hereinafter provided; as Additional Rentin the event that Landlord should hereafter grant to Tenant permission to seek to assign or sublet, Tenant agrees to reimburse Landlord promptly for Landlord's reasonable legal and other expenses attorneys' fees incurred by Landlord in connection with the processing and documentation of any request by Tenant for consent to assignment requested transfer, assignment, or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceagreement. Said Landlord's consent permission to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent seek to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.fmust be in writing. of the Premises after the date of commencement of such subleaseFurther, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have reserves the right to rescind approve any such request sub-tenant or assignee, and may demand any documentation whatsoever to Landlord's satisfaction in the event order to approve said sub-tenant or assignee. Further, Landlord elects to so terminate this Lease by notice given to Landlord may deny said approval solely within five Landlord's discretion and applicable law. 201 TERMINATION: TENANT SHALL GIVE LANDLORD NOT LESS THAN SIXTY (560) days after the date of such DAYS WRITTEN NOTICE OF TENANT'S INTENTION TO DISCONTINUE ITS TENANCY HEREUNDER PRIOR TO THE END OF ANY TERM. IF TENANT FAILS TO PROVIDE SUCH NOTICE, TENANT'S TERM SHALL AUTOMATICALLY BE RENEWED FOR AN ADDITIONAL ONE YEAR TERM. TENANT'S CONTINUED FAILURE TO PROVIDE LANDLORD SUCH NOTICE WILL RESULT IN TENANT'S TERM BEING AUTOMATICALLY RENEWED FOR SUCCESSIVE ADDITIONAL ONE YEAR TERMS. SAID NOTICE MAY NOT BE GIVEN MORE THAN NINETY (90) DAYS PRIOR TO THE END OF ANY TERM. LANDLORD MAY, AT LANDLORD'S ELECTION, GIVE TENANT WRITTEN NOTICE OF LANDLORD'S ELECTION TO TERMINATE TENANCY NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE END OF ANY TERM, OR ELECT EARLY TERMINATION PURSUANT TO THE PROVISIONS OF SECTION 3.1. NOTHING HEREIN SHALL BE DEEMED TO PROVIDE TENANT WITH AN IRREVOCABLE OPTION TO RENEW TENANT'S TENANCY. EXPRESS RENEWAL AND AUTOMATIC RENEWAL ARE EXPRESSLY CONDITIONED UPON LANDLORD'S CONSENT, WHICH SHALL BE DEEMED GIVEN ABSENT LANDLORD'S WRITTEN NOTICE OF TERMINATION OF TENANCY.
(a) Upon termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term default of this Lease, Tenant agrees to return to Landlord any equipment provided by Landlord to Tenant. The equipment is:, and shall remain at all times, the property of Landlord. Further, Tenant shall provide Landlord with a forwarding address such that residual ▇▇▇▇▇▇▇▇ can be mailed to Tenant.
(ib) a corporation or a trust Tenant, including its principals, partners, shareholders, officers, directors, managers, members, owners (whether or not having shares of beneficial interestcollectively "Tenant's Related Parties") and there shall occur any change in parent, subsidiary or affiliated companies, jointly and severally agree that during the identity term of this Lease or within one year following the termination of this Lease, Tenant and Tenant's Related Parties will not hire any of the employees of Landlord or persons then having power employed by Landlord during the 90-day period prior to participate the hire date of said person by Tenant. In the event that Tenant shall breach any obligation contained in this paragraph, Tenant shall be liable to Landlord for, and shall pay to Landlord on demand, damages in the election or appointment sum of the directors$5,000 for each such employee, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; it being mutually agreed by Tenant shall so notify Landlord and Landlord may terminate that this Lease provision for liquidated damages is reasonable and that the actual damage which would be sustained by notice Landlord as the result of a failure to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, comply with the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease would be impractical or sublet any portion of the Premises without Landlord's consent extremely difficult to (i) any successor of Tenant resulting from an acquisition of all fix or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantdetermine.
Appears in 1 contract
Assignment and Subletting. Not (a) Tenant shall not assign or pledge this Lease or sublet the whole or any part of the Premises, whether voluntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, and shall not make, suffer or permit any such assignment, subleasing or occupancy, without the prior written consent of Landlord (such consent not to be unreasonably withheld, conditioned or delayed), which restrictions shall be binding upon any and all assignees of this Lease and subtenants of the Premises. No assignment or subletting shall result in a change in the Permitted Use. In the event Tenant desires to sublet, or permit such occupancy of, the Premises, or any portion thereof, or assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by give written notice thereof to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice to the proposed commencement date of such subletting or assignment, which notice shall set forth the name of the proposed tenant or assignee, the relevant terms of any sublease or assignment and copies of financial statements and other relevant information bearing on the character of the proposed subtenant or assignee and its ability to observe and perform its agreements and obligations. If Landlord has not either consented to, or affirmatively withheld its consent to, Tenant’s request for Landlord’s consent under this Article 24 within ten (10) business days following Landlord’s receipt of Tenant’s request therefor, then Landlord shall be deemed to have given its consent hereunder.
(b) Notwithstanding any assignment or subletting, permitted or otherwise, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of the rent specified in this Lease and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease. If the Premises or any part of them are sublet and Tenant then defaults under this Lease, Landlord, in addition to any other remedies provided in this Lease or provided by law, may, at its option, collect directly from the subtenant all rents due and becoming due to Tenant under such sublease and apply such rent 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.
(c) In addition to Landlord’s right to approve of any subtenant or assignee, Landlord shall have the option, in its sole discretion, in the event of any proposed subletting (for all or substantially all of the balance of the Term) or assignment, to terminate this Lease, or in the case of a proposed subletting of less than the entire Premises, to recapture the portion of the Premises to be sublet, as of the date the subletting or assignment is to be effective. The option shall be exercised, if at all, by Landlord giving Tenant written notice within five (5) days following Landlord’s receipt of Tenant’s written notice as required above. If this Lease shall be terminated with respect to the entire Premises pursuant to either this subsection 24(c), the Term of this Lease shall end on the date stated in Tenant’s notice as the effective date of the foregoing clauses sublease or assignment as if that date had been originally fixed in this Lease for the expiration of the Term. If Landlord recaptures under this subsection only a portion of the Premises, then rent to be paid from time to time during the unexpired Term shall ▇▇▇▇▇ proportionately based on the proportion by which the approximate rentable 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 on the part of Landlord with respect to this Lease, and any commissions which may be due and owing as a result of any proposed assignment or subletting, whether or not the Premises are recaptured pursuant hereto and rented by Landlord to the proposed tenant or any other tenant. In addition, Tenant shall reimburse Landlord within ten (i10) days of demand for all costs incurred to demise the recaptured space from the balance of the Premises.
(d) In the event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall pay to Landlord as Additional Rent an amount equal to fifty percent (ii)50%) of any Increased Rent (as defined below) when and as such Increased Rent is received by Tenant. As used herein, the term "Affiliate of Tenant" “Increased Rent” shall mean the excess of (i) all rent and refer other consideration which Tenant is entitled to receive by reason of any entity controlled bysale, controlling sublease, assignment or other transfer (hereinafter, “Transfer”) of this Lease (after deducting the actual, reasonable expenses incurred by Tenant for (A) any changes, alterations and improvements to the Premises in connection with such Transfer, (B) any free base rent reasonably provided to the transferee in connection with the Transfer, (C) any brokerage commissions in connection with the Transfer, (D) any reasonable attorneys’ fees payable by Tenant in connection with the Transfer, and (E) any Landlord processing fees payable by Tenant in connection with the Transfer), over (ii) the rent otherwise payable by Tenant under common control with Tenantthis Lease at such time. For purposes of the foregoing, any consideration received by Tenant in form other than cash shall be valued at its fair market value as determined by Landlord in good faith.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent Provided no Event of Landlord to assign this LeaseDefault is then continuing, to make Tenant may sublet all or any sublease, or to permit occupancy part of the Premises or any part thereof by anyone other than Tenant(provided, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (that each such sublease shall expressly be made subject to the provisions of Section 5.1.12 hereof); no this Lease, including Paragraph 3) and may assign all its rights and interests under this Lease without Landlord's prior consent, except as may be required below in this Paragraph 16. If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment or subletting shall affect expressly assume all the continuing primary liability obligations of Tenant (whichhereunder in an instrument, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both approved by Landlord as to the terms form and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee substance (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall which approval will not be unreasonably withheld, conditioned or delayed) and delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Paragraph 16 shall affect or reduce any of the obligations of Tenant hereunder and the Tenant shall remain unconditionally liable, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made; provided that performance by any such assignee or sublessee of any of the obligations of Tenant is not then in default under this Lease and that such assignee shall be deemed to be performance by Tenant. No sublease or subtenant pays therefor the greater assignment made as permitted by this Paragraph 16 shall impose any obligations on Landlord or otherwise affect any of the Fixed Rentrights of Landlord under this Lease. Subject to Paragraph 11 above, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign neither this Lease nor the Term hereby demised shall be mortgaged, pledged or hypothecated by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to sublet any portion sublease of the Premises such that Tenant shall not occupy at least 40,000 r.s.for the rentals payable thereunder. of the Premises after the date of commencement of such subleaseAny mortgage, Landlord shall have the optionpledge, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; providedassignment made in violation of this Paragraph 16 shall be void. Tenant shall, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five ten (510) days after the date execution and delivery of any such termination notice from assignment or sublease of all or substantially all of the Premises, deliver a conformed copy thereof to Landlord, in which event such termination notice shall be . Within ten (10) days after the execution and delivery of no further force or effect; If, at any time during sublease of a portion of the Term of this LeasePremises, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any give notice to Landlord of the persons then having power to participate in the election or appointment existence and term thereof, and of the directors, trustees or other persons exercising like functions name and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any address of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchangesublessee thereunder. Notwithstanding the foregoing provisions of this Section 5.2.1Paragraph 16 to the contrary, Tenant shall not, without the prior written consent (which consent, to be effective, must expressly state Landlord is aware that the subject assignee or subtenant, as the case may be, is a tax-exempt entity) of Landlord in each instance (which Landlord may grant or withhold in its sole discretion), assign all or any part of its interest in this Lease or sublet all or any part of the Premises, or in any other manner grant any right to use, occupy or otherwise "lease" (within the meaning of Section 168(h) of the Internal Revenue Code of 1986, as amended (the "CODE"), or any successor section thereof or of any successor statute, which pertains to matters addressed in Section 168(h) ("SECTION 168(h)")) all or any part of the Premises, to any "tax-exempt entity," as defined in Section 168(h), to the extent that the aggregate portion of the Premises without Landlord's consent to sublet, assigned, used, occupied or "leased" by all such tax-exempt entities shall be more than 35% (ior such lessor or greater percentage as may be specified in clause (1)(B)(iii) of Section 168(h) or any successor clause which specifies such a percentage) of the Premises. Tenant resulting from an acquisition agrees that any assignment or subletting made in violation of the foregoing sentence will be deemed initially void, and Tenant acknowledges that, notwithstanding such voiding, Landlord may incur damages as a result of such violations and Tenant agrees to indemnify Landlord with respect to any such damages or claims in respect thereof, including reasonable attorneys' fees. In no event shall the term of a sublease of all or substantially part of the Premises extend beyond the last day of the then scheduled end of the Term of this Lease. Tenant hereby irrevocably, absolutely and unconditionally assigns, and grants a security interest in, all rents and other sums of money payable under any sublease of any part or all of Tenant's assets or the Premises. Further, Landlord shall have the right to collect and enjoy all such rents and money; provided, however, Tenant is hereby granted a merger or consolidation license to collect and enjoy such rents and money, except when an Event of Default shall be continuing under this Lease. Tenant and (ii) any Affiliate of Tenant (shall execute such financing statements as hereinafter defined) whose net worth is equal Landlord may reasonably request to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of perfect the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantassignment as a security interest.
Appears in 1 contract
Sources: Lease Agreement (Perry-Judds Inc)
Assignment and Subletting. Not (a) The Tenant shall not assign this Lease in whole or in part, nor sublet all or any part of the Demised Premises, nor grant any license or part with possession of the Demised Premises, nor transfer any other right or interest under this Lease without the prior written consent of the Landlord to assign in each instance, which consent may not be unreasonably or arbitrarily withheld.
(b) Notwithstanding any assignment or sublease, the Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants and conditions of this Lease, to make any sublease, .
(c) If the Lease is assigned or to permit occupancy of if the Demised Premises or any part thereof is sublet or occupied by anyone other than Tenantthe Tenant with appropriate consent of the Landlord, voluntarily the Landlord may collect rent directly from the assignee, subtenant or occupant, and apply the net amount collected, or the necessary portion thereof, to the rent herein reserved.
(d) The prohibition against assigning, subletting, licensing, and transferring without the consent required by this Article shall be construed to include a prohibition against any such assignment, sublease, license, transfer or mortgage by operation of law, except as hereinafter provided; as Additional Rent, .
(e) The consent by the Landlord to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, sublease, license, or transfer shall be joint and several with not constitute a waiver of the assignee); no necessity of such consent to any subsequent assignment, sublease, license, or transfer.
(f) All costs incurred by the Landlord in respect of any such request for consent, including reasonable legal costs on a full indemnity basis and the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to ’s reasonable administration costs are the terms responsibility of and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to paid by the reasonable creditworthiness of Tenant forthwith upon request, whether or not the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's ’s consent to any assignment or subletting by is granted.
(g) The Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent permitted to assign this Lease or to sublet all or any portion of the Demised Premises to an affiliate (as such term is defined in the Business Corporations Act (Alberta)) of the Tenant provided that the Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of released upon such assignment or subletting pursuant sublet and further provided that the Tenant shall provide notice to either the Landlord of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsuch assignment.
Appears in 1 contract
Sources: Lease Agreement (Hut 8 Corp.)
Assignment and Subletting. Not (a) Tenant acknowledges that without the prior written consent of Landlord (which consent shall not be unreasonably withheld or delayed), Tenant does not have the right or power to assign or in any manner transfer this Lease, to make any sublease, or to permit occupancy of the Premises Lease or any part thereof by anyone other than Tenantestate or interest hereunder. Further, without Landlord's prior written consent (which consent shall not be unreasonably withheld or delayed), Tenant shall not:
(i) permit any assignment of this Lease or any estate or interest hereunder, voluntarily or by operation of law; (ii) sublet the Premises or any part thereof; (iii) grant any license, except concession or other right of occupancy of any portion of the Premises; or (iv) permit the Premises to be possessed by any parties other than Tenant, its agents and employees (hereinafter the above are individually and collectively referred to as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred "Transfer"). Consent by Landlord in connection with any request by Tenant for consent to assignment one or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall more Transfers will not operate as a waiver in of Landlord's rights as to any subsequent instanceTransfers. Notwithstanding any assignment or subletting, Tenant shall at all times remain fully liable for the payment of the rent herein specified and for compliance with all of Tenant's other obligations hereunder. If an event of default (as defined below) should occur when this Lease is assigned or any part of the Premises are sublet, Landlord, in addition to any other remedies provided in this Lease or available at law, may at its option collect directly from any assignee or subtenant all rents becoming due to Tenant and apply them against any sums due from Tenant. Tenant hereby authorizes and directs any assignee or subtenant to make such payments of rent directly to Landlord upon request from Landlord. No collection by Landlord from any assignee or subtenant will constitute a novation or a release of Tenant or any guarantor of Tenant's obligations from the further performance of Tenant's obligations. Nor will Landlord's consent receipt of rent from any transferee, assignee, subtenant, or occupant of the Premises constitute a waiver of Tenant's covenant against assignment and subletting. Any attempted Transfer, assignment, sublease, mortgage or encumbrance by Tenant in violation of this Paragraph will be void.
(b) Should Tenant desire to any make a Transfer requiring Landlord's consent, Tenant shall give Landlord not less than forty-five (45) days prior written notice thereof and at the same time as giving such notice and requesting Landlord's consent, submit a copy of the Transfer documents to Landlord, together with a processing fee of $750.00, and notify Landlord of the proposed assignment or subletting commencement date of the Transfer, the name of the proposed Transferee (accompanied by evidence of the nature, character, and financial condition of the Transferee and its business which Landlord believes is required both as to the necessary for its determination), and all terms and conditions thereof and as (including rental) of or relating to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the PremisesTransfer. If Tenant requests Landlord's consent to assign this Lease or to sublet Landlord grants any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may to assign this Lease or sublet any part of the Premises, such assignment or subletting will be subject to all the terms and conditions of this Lease, including conditions as to use and occupancy of the Premises. Under no circumstances will Tenant be relieved from any obligation under this Lease during any period that the Premises are sublet or this Lease is assigned. If the consideration Tenant receives for any Transfer exceeds the rent payable under this Lease for the same period and portion of the Premises Premises, seventy-five (75%) of the excess shall be immediately due and payable by Tenant to Landlord as additional rent under this Lease.
(c) Notwithstanding anything to the contrary contained in this Paragraph 18, Tenant may, without Landlord's consent prior written consent, but with at least ten (10) days prior written notice to Landlord, (i) any successor of assign this Lease to an entity into which Tenant resulting from is merged or consolidated or to an acquisition of all or entity which substantially all of Tenant's assets or a merger or consolidation of Tenant are transferred and (ii) assign or sublet the Premises, or any Affiliate of part thereof, to an entity controlling Tenant, controlled by Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
(d) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq., (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Tenant, shall be and remain the exclusive property of Tenant and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Tenant's property under the preceding sentence not paid or delivered to Tenant shall be held in trust for the benefit of Tenant and be promptly paid or delivered to Tenant. The inclusion of this subparagraph in this Lease is not intended as, and shall not be construed as, the Landlord's consent to an assignment and/or assumption of this Lease.
(e) Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on or after the date of such assignment. Any such assignee shall upon demand execute and deliver to Tenant an instrument confirming such assumption. The inclusion of this subparagraph in this Lease is not intended as, and shall not be construed as, the Landlord's consent to an assignment and/or assumption of this Lease.
(f) This Lease is a contract under which applicable law excuses Tenant from accepting performance from (or rendering performance to) any person or entity other than Tenant within the meaning of Sections 365(c) and 365(e)(2) of the Bankruptcy Code, or any successor or substitute statutes.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord Tenant agrees not to assign assign, mortgage or pledge this Lease, and shall not sublet the Premises without Landlord’s prior written consent, which shall not be unreasonably withheld. Without limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if: (1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to make any subleaseselect Building tenants having similar leasehold obligations; (2) the proposed transferee’s use is not suitable for the Building considering the business of the other tenants and the Building’s prestige, or to permit occupancy would result in a violation of another tenant’s rights; (3) the proposed transferee is a governmental agency or occupant of the Project; (4) Tenant is in default after the expiration of the notice and cure periods in this Lease; or (5) any portion of the Premises or Building would likely become subject to additional or different laws as a consequence of the proposed assignment or subletting. Tenant shall not be entitled to receive any part thereof by anyone other than monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed sublease or assignment and Tenant’s sole remedy shall be an action to enforce any provision through specific performance or declaratory judgment. Any attempted sublease or assignment in violation of this Article shall, voluntarily or by operation of lawat Landlord’s option, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred be void. Consent by Landlord in connection with any request by Tenant for consent to assignment one or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment more subleases or subletting assignments shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall not operate as a waiver in of Landlord’s rights to approve any subsequent instancesubleases or assignments. Landlord's consent to any proposed Any assignment or subletting is required both as hereunder shall not release or discharge Tenant of or from any liability under this Lease, and Tenant shall continue to be fully liable thereunder. As part of its request for Landlord’s consent to a sublease or assignment, Tenant shall provide Landlord with financial statements for the terms and conditions thereof and as to the consistency proposed transferee, a complete copy of the proposed assignee's or subtenant's business with sublease, assignment and other uses contractual documents and tenants in such other information as Landlord may reasonably request. Landlord shall, by written notice to Tenant within fifteen (15) days of its receipt of the Building. In additionrequired information and documentation, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness sublease or assignment by the execution of a consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to the proposed assignee sublease or assignment in view writing. If Tenant shall assign or sublet the Lease or request the consent of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent Landlord to any assignment or subletting or if Tenant shall request the consent of Landlord for any act Tenant proposes to do, then Tenant shall pay Landlord’s reasonable costs and expenses incurred in connection therewith, including reasonable attorneys’, architects’, engineers’ or other consultants’ fees. Consent by Tenant Landlord to one assignment, subletting, occupation, or use by another person shall not be unreasonably withhelddeemed to be consent to any subsequent assignment, provided subletting, occupation, or use by another person. Tenant shall pay fifty percent (50%) of all rent and other consideration which Tenant receives as a result of a sublease or assignment that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater excess of the Fixed Rent, Additional Rent, and all other payments then Rent payable hereunder, or the then fair market rent to Landlord for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that and Lease Term covered by the sublease or assignment. Tenant shall not occupy at least 40,000 r.s.f. pay Landlord for Landlord’s share of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given any excess within 10 thirty (30) days after Tenant’s receipt of such request, excess consideration. Tenant may deduct from the excess all reasonable and customary expenses directly incurred by Tenant attributable to terminate this Lease as of the date of commencement the proposed sublease or assignment; providedassignment (other than Landlord’s costs and expenses), howeverincluding brokerage fees, that reasonable concessions, legal fees and construction costs. If Tenant shall have is a corporation, an unincorporated association or a partnership, unless listed on a national stock exchange, the right to rescind transfer, assignment or hypothecation of any stock or interest in such request corporation, association or partnership in the event Landlord elects to so terminate this Lease by notice given to Landlord within five aggregate in excess of fifty percent (550%) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term deemed an assignment of this Lease, . Tenant is:
(i) a corporation agrees to immediately notify Landlord of any 10% or a trust (whether or not having shares of beneficial interest) and there shall occur any more change in the identity of any of the persons then having power to participate its ownership. Notwithstanding anything contained in the election or appointment of the directorsthis Lease, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, agree as follows: Tenant may assign this Lease or sublet the Premises, or any portion of the Premises thereof, upon prior written notice to Landlord, but without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof’s consent, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity which controls, is controlled by, controlling or is under common control with Tenant; to any entity which results from a merger of, reorganization of, or consolidation with Tenant; or to any entity which acquires substantially all of the stock or assets of Tenant, as a going concern, with respect to the business that is being conducted in the Premises (hereinafter each such transfer, a “Permitted Transfer” and each transferee a “Permitted Transferee”), provided that Tenant and its assignee or subtenant, as the case may be, shall execute and deliver to Landlord such documents as Landlord may reasonably require, including, without limitation, a lease assignment and assumption agreement, pursuant to which such assignee/subtenant shall assume all of the duties and obligations of Tenant under this Lease, and further provided that Tenant shall not be released from any of its duties, obligations and liabilities under this Lease. In addition, a sale or transfer of all of the capital stock of Tenant shall be deemed a Permitted Transfer if (1) such sale or transfer occurs in connection with any bona fide financing or capitalization for the benefit of Tenant, or (2) Tenant is or becomes a publicly traded corporation. Landlord shall have no right to terminate the Lease in connection with, and shall have no right to any sums or other economic consideration resulting from any Permitted Transfer, so long as no default shall have occurred (after the giving of any required notice of default and the expiration of any applicable cure period). Additionally, any rights that are personal to Tenant shall also accrue to any Permitted Transferee, subject to the terms and conditions of this Lease.
Appears in 1 contract
Assignment and Subletting. Not without a. Tenant shall have the prior written consent of Landlord right to assign this Lease, to make any sublease, Lease or to permit occupancy of sublet the Premises whole or any part thereof by anyone of the Hangar Space and the Office Space, together with Tenant’s right to use all other than Tenantportions of the Leased Premises granted hereunder and in accordance with the terms hereof, whether voluntarily or by operation of law, except as hereinafter provided; as Additional Rentand to permit the use or occupancy of the Hangar Space, the Office Space and the Leased Premises by anyone other than Tenant, only with the prior written consent of Landlord, which shall not be unreasonably withheld, provided such assignment satisfies the purposes of the Compact and enhances the sound economic development of the State. Such restrictions shall be binding upon any assignee or subtenant of Tenant to reimburse which Landlord promptly for has consented. In the event Tenant desires to sublet the Hangar Space, the Office Space, or any portion thereof, or assign this Lease, Tenant shall give written notice thereof to Landlord within a reasonable legal time prior to the proposed commencement date of such subletting or assignment, which notice shall set forth the name of the proposed subtenant or assignee and other expenses incurred by the relevant terms of any sublease or assignment. In no event may Tenant sublet or assign, nor will Landlord in connection with any request by Tenant for consent to any sublease or assignment, if the rent is determined in whole or in part based upon the income or profits derived by the sublessee or assignee (other than a rent based on a fixed percentage or percentages of receipts or sales), if Landlord is currently negotiating with such proposed assignee for space elsewhere at the Airport, if the proposed subtenant or assignee is of a character or is engaged in a business which is not in keeping with the standards of the Airport, if the subtenant or assignee does not have the financial resources to discharge the obligations it is undertaking (as determined in Landlord’s reasonable discretion), or if such proposed assignee or subtenant is a governmental entity. Notwithstanding any assignment or subletting (subject to permitted hereunder, Tenant shall at all times remain directly, primarily and fully responsible and liable for the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any payment of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to Rent herein specified and for compliance with all of its other obligations under the terms terms, provisions and conditions thereof and as to the consistency covenants of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Upon the occurrence of an Event of Default (as hereinafter defined), if the Lease has been assigned or the Hangar Space, the Office Space, or any portion thereof, has been sublet, Landlord's , in addition to any other remedies herein provided or provided by law, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against any Rent or other 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 farther performance of Tenant’s obligations hereunder. Tenant shall pay to Landlord, on demand, a reasonable service charge equal to Landlord’s reasonable, actual out-of-pocket costs for the processing of Tenant’s application for, and the preparation of, Landlord’s consent to any assignment or subletting by Tenant shall not be unreasonably withheldhereunder, provided that Tenant such service charge shall be collectible by Landlord only where consent is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. granted by Landlord.
b. If Tenant requests Landlord's consent to assign assigns this Lease or to sublet sublets all or any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of Hangar Space or the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind Office Space and receives any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant Profits (as hereinafter defined) whose net worth is equal ), whether as a lump-sum payment, periodic payment or otherwise, then all such Profits shall be paid to or greater than the net worth of Tenant Landlord as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantAdditional Rent.
Appears in 1 contract
Sources: Lease Agreement
Assignment and Subletting. Not (a) Subtenant shall not (directly or indirectly by operation of law or otherwise) assign this Sublease nor sublet or otherwise transfer its interest in all or any part of the Premises without the prior written consent of Landlord and Tellabs. Tellabs agrees to not unreasonably withhold, condition, or delay its consent, but may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Subtenant wishes to assign or transfer this Lease, to make any sublease, Sublease or to permit occupancy of the Premises sublet all or any part thereof by anyone other than Tenantof the Premises, voluntarily or by operation it shall give notice in writing of lawsuch intention to Landlord and Tellabs, except as hereinafter provided; as Additional Rent, to reimburse furnishing Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection Tellabs with any request by Tenant for consent to assignment or subletting (subject to a copy of the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following proposed assignment, shall be joint transfer, or sublease document and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both full information as to the terms identity and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness financial status of the proposed assignee or subtenant. Tellabs will then, within 15 days of receipt of such notice, approve or reject such assignment or subletting by written notice to Subtenant. If no such response is given, Tellabs shall be deemed to have elected to approve the assignment or subletting.
(b) Despite the foregoing, subject to the terms of the Prime Lease, Subtenant may, without Tellabs' consent, assign this Sublease or sublet the Premises to its parent entity, any wholly-owned subsidiary of Subtenant, or any affiliate wholly-owned by Subtenant’s parent entity (each an "Affiliate Assignee") provided that: (i) Subtenant shall have given Tellabs at least 30 days prior notice of the assignment or sublease; (ii) Subtenant shall not be in view default under any of market conditions then prevailing for leases having terms the provisions of this Sublease at the time of the assignment or sublease; and conditions comparable (iii) the Affiliate Assignee delivers to Landlord and Tellabs the assignment, sublease, or other written instrument in which Affiliate Assignee agrees to assume and be bound by all the conditions, obligations, and agreements of Subtenant contained in this LeaseSublease.
(c) Despite any assignment, sublease, or other transfer, Subtenant shall remain liable under this Sublease and shall not be released without the express written agreement of Landlord and Tellabs. Landlord's The consent by Landlord and Tellabs to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater constitute a waiver of the Fixed Rentnecessity for consent to any subsequent assignment or subletting. Within 10 days after Subtenant receives payment under an assignment, Additional Rent, and all other payments then payable hereundersublease, or other transfer of the then fair market Premises or this Sublease, Subtenant will pay Tellabs 50% of all rent for the Premises. If Tenant requests Landlord's consent to assign this Lease and consideration that Subtenant receives from that transfer that exceeds Rent (or to sublet any if only a portion of the Premises such is being sub-sublet, 50% of all rent and consideration that Tenant shall not occupy at least 40,000 r.s.f. of Subtenant receives over the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent Rent then payable to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or Tellabs allocated on a merger or consolidation of Tenant square footage basis to the sub-sublet space), less the actual and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than reasonable out-of-pocket costs and expenses incurred by Subtenant in connection with the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used hereinPremises, the term "Affiliate of Tenant" shall mean including, but not limited to, attorneys fees, marketing expenses, rent concessions, brokerage commissions, any alteration costs and refer to any entity controlled by, controlling or under common control with Tenantallowances.
Appears in 1 contract
Sources: Sublease (Datawatch Corp)
Assignment and Subletting. Not (a) Tenant shall not sell, assign, encumber or otherwise transfer by operation of law or otherwise this Lease or any interest herein, sublet the Premises or any portion thereof, or suffer any other person to occupy or use the Premises or any portion thereof, without the prior written consent of Landlord as provided herein, which consent shall not be unreasonably withheld, delayed or conditioned, nor shall Tenant permit any lien to assign this Leasebe placed on the Tenant's interest by operation of law. Tenant shall, by written notice, advise Landlord of its desire from and after a stated date (which shall not be less than thirty (30) days nor more than ninety (90) days after the date of Tenant's notice) to make any sublease, or to permit occupancy of sublet the Premises or any portion thereof for any part thereof of the term hereof; and supply Landlord with such information, financial statements, verifications and related materials as Landlord may request or desire to evaluate the written request to sublet; and in such event Landlord shall within thirty (30) days from Landlord's receipt of such notice and all said information, financial statements, verifications and related materials requested by anyone other than Landlord (i) consent to such proposed subletting or (ii) deny such consent giving reasons for denying such consent at the time of denial. Said notice by Tenant shall state the name and address of the proposed subtenant, and Tenant shall deliver to Landlord a true and complete copy of the proposed sublease with said notice. Tenant shall, at Tenant's own cost and expense, voluntarily discharge in full any outstanding commission obligation on the part of Landlord with respect to this lease, and any commissions which may be due and owing as a result of any proposed assignment or by operation subletting. Tenant agrees to pay to Landlord, promptly after request therefor, the amount of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for all reasonable legal attorneys' fees and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting issues or review of documentation relating thereto.
(subject b) Any subletting or assignment hereunder by Tenant shall not result in Tenant being released or discharged from any liability under this Lease. As a condition to Landlord's prior written consent as provided for in this paragraph, the provisions of Section 5.1.12 hereof); no assignment assignee or subletting subtenant shall affect the continuing primary liability of Tenant (which, following assignment, shall agree in writing to comply with and be joint and several with the assignee); no consent to any bound by all of the foregoing in a specific instance terms, covenants, conditions, provisions and agreements of this Lease, and Tenant shall operate as a waiver in any subsequent instance. deliver to Landlord promptly after execution, an executed copy of each sublease or assignment and an agreement of said compliance by each sublessee or assignee.
(c) Landlord's consent to any sale, assignment, encumbrance, subletting, occupation, lien or other transfer shall not release Tenant from any of Tenant's obligations hereunder or be deemed to be a consent to any subsequent occurrence. Any sale, assignment, encumbrance, subletting, occupation, lien or other transfer of this Lease which does not comply with the provisions of this Paragraph 9 shall be void.
(d) For purposes of this Section, an assignment of stock or other direct or indirect ownership interest in Tenant which constitutes a controlling interest in Tenant shall be deemed an assignment within the meaning of and be governed by this Section.
(e) Notwithstanding any provision contained herein, Tenant agrees that it shall not sell, assign, encumber or otherwise transfer by operation of law or otherwise this Lease or any interest herein, or sublet the Premises or any portion thereof, to any tenant who currently leases space in the Building.
(f) Landlord's consent to a proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable pursuant to this Lease. Landlord's consent to any assignment or subletting by Tenant Paragraph 9 shall not be unreasonably withheld, provided that Tenant is not then delayed or conditioned, but, in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rentaddition to any other grounds for denial, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter deemed reasonably withheld if, in Landlord's reasonable judgment, any of the credit of Tenant is thereby impaired. This paragraph shall not apply if following conditions exist:
(i) the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease proposed assignee or sublet subtenant intends to use any portion part of the Premises without Landlord's consent to (i) any successor for the operation of Tenant resulting from an acquisition of all a retail business or substantially all of Tenant's assets or for a merger or consolidation of Tenant and purpose not permitted under this Lease; or
(ii) any Affiliate the use of the Premises or the Building by the proposed assignee or subtenant would, in Landlord's reasonable judgment, significantly increase the pedestrian traffic in and out of the Building, or would require material or substantial alterations to the Building, Premises or Property in order to comply with applicable laws; or
(iii) the proposed use by such subtenant or assignee would result in a violation of an exclusive right granted to another tenant in the Building, or require rezoning or a zoning variance; or
(iv) the proposed subtenant or assignee is a governmental agency; or
(v) the business and operations of the proposed assignee or subtenant are inconsistent with the tenancy of a comparable building, and/or would be incompatible with the businesses and operations being conducted by other tenants in the Building, or
(vi) the proposed use by such subtenant or assignee could create a condition that is dangerous to persons or property (e.g. a foreign consulate) or could create an atmosphere or condition that could be disruptive to the operation of the Building (e.g. an abortion or methadone clinic); or
(vii) as a result of the number of people to be officed in the space proposed for sublease or assignment, the efficiency of the Premises' HVAC system would be materially diminished; or
(viii) with respect to a sublease, Tenant proposes to demise the sublease space in a commercially unreasonable manner (as hereinafter definede.g. in a configuration that would not be readily leaseable at the end of the Lease Term) whose net worth is and does not provide Landlord with additional security in an amount equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantall reasonably anticipated restoration costs.
Appears in 1 contract
Assignment and Subletting. Not Except as expressly provided in this Article 15, Tenant shall have no power to, either voluntarily, involuntarily, by operation of law or otherwise, sell, assign, mortgage, pledge, transfer or hypothecate this Lease, or sublet the Premises or any part thereof, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Landlord to assign this Lease, to make any sublease, shall grant or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for deny consent to assignment or subletting a proposed Transfer by written notice to Tenant within ten (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. 10) business days after Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency receipt of an executed duplicate original of the proposed assignee's or subtenant's Transfer document together with financial information reasonably requested by Landlord. If Landlord fails to so respond in writing to Tenant within said ten (10) business day period, Tenant may send a second written notice ("Deemed Response Notice") to Landlord with other uses such information and tenants in the Building. In addition, as indicating that such Deemed Response Notice is being delivered pursuant to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness Article 15 of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's failure to withhold its consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 five (5) business days after Landlord's receipt of a properly delivered Deemed Response Notice shall be deemed to constitute Landlord's consent to such request, Transfer. Tenant may transfer its interest pursuant to terminate this Lease only upon the following express conditions, which conditions are agreed by Landlord and Tenant to be reasonable:
(a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written consent of Landlord, which consent will not be unreasonably withheld.
(b) That Tenant shall pay to Landlord Landlord's reasonable attorneys' fees and costs incurred in connection with the proposed Transfer, not to exceed a total of $1,500.00 per proposed Transfer.
(c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree to perform faithfully and be bound by all of the date terms, covenants, conditions, provisions and agreements of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease applicable to that portion of the Premises so transferred.
(d) That an executed duplicate original of said assignment and assumption agreement or other Transfer on a form reasonably approved by notice given Landlord, shall be delivered to Landlord within five (5) days after the date execution thereof, and that such Transfer shall not be binding upon Landlord until the delivery thereof to Landlord and the execution and delivery of such termination notice from Landlord, in which event such termination notice 's consent thereto. It shall be a condition to Landlord's consent to any subleasing, assignment or other transfer of no further force part or effectall of Tenant's interest in the Premises ("Transfer") that (i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay Landlord fifty percent (50%) of any "Transfer Premium" (defined below), received by Tenant from the Transferee; If, at (ii) any time during sublessee of part or all of Tenant's interest in the Term of Premises shall agree that in the event Landlord gives such sublessee notice that Tenant is in default under this Lease, such sublessee shall thereafter make all sublease or other payments directly to Landlord, which will be received by Landlord without any liability whether to honor the sublease or otherwise (except to credit such payments against sums due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and assigns at their request should this Lease be terminated for any reason, except that in no event shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) Landlord may require that Tenant is:
not then be in default hereunder after expiration of any applicable cure period; and (iiv) Tenant or the proposed subtenant or assignee (collectively, "Transferee") shall agree to pay Landlord, upon demand, as Additional Rent, a corporation or sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a trust (whether or not having shares result of beneficial interest) and there shall occur any change in the identity nature of occupancy caused by such subletting or assignment. "Transfer Premium" shall mean all rent, Additional Rent or other consideration payable by a Transferee in connection with a Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall be calculated on a rentable square foot basis. In any event, the Transfer Premium shall be calculated after deducting the reasonable expenses incurred by Tenant for (1) any changes, alterations and improvements to the Premises paid for by Tenant in connection with the Transfer, (2) any other out-of-pocket monetary concessions provided by Tenant to the Transferee, and (3) any brokerage commissions and attorneys' fees paid for by Tenant in connection with the Transfer. In no event shall the consent by Landlord to any Transfer be construed as relieving Tenant or any Transferee from obtaining the express written consent of Landlord to any further Transfer, or as releasing Tenant from any liability or obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall be deemed a waiver of any provision of this Article 15 or the persons then having power to participate in the election or appointment acceptance of the directorsany Transferee hereunder, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate release of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate any Transferee of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant).
Appears in 1 contract
Sources: Lease (Cohu Inc)
Assignment and Subletting. Not Notwithstanding anything to the contrary -------------------------- contained in the Main Lease or the Sublease, and subject to obtaining Sublessor's and the landlord's consent to this Section 35 and to any such assignment or sublet, Sub-Subtenant shall have the right, without the prior written consent of Landlord Sub-Sublessor, to assign this Lease, to make any sublease, Sub-Sublease or to permit occupancy of the Premises further sublet all or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Sub-Subleased Premises such that Tenant shall not occupy at least 40,000 r.s.f. to a subsidiary, affiliate or parent corporation of Sub-Subtenant so long as (i) Sub-Subtenant owns fifty percent (50%) of more of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as stock of the date transferee subsidiary or affiliate; (ii) Sub-Subtenant and its parent corporation remain fully liable for the obligations of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time Sub-Subtenant during the remaining Term of this Lease, Tenant is:
Sub-Sublease; (i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (iiii) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant sublet shall be subject to either all of the foregoing clauses terms, covenants and conditions of this Sub-Sublease; (iiv) any transferee of Sub- Subtenant shall fully assume in writing all of the obligations of Sub-Subtenant hereunder; and (v) the form of assignment or sublet shall be reasonably acceptable to Sub-Sublessor. Any other proposed assignment or sublet by Sub- Subtenant shall be in conformance with the provisions of Article 26 of the Main Lease, and Sub-Subtenant shall pay to Sub-Sublessor fifty percent (ii). As used herein50%) of any "excess rent" i.e., rent in excess of the term "Affiliate of Tenant" shall mean Monthly Base Rent and refer to any entity controlled byAdditional Rent payable by Sub-Subtenant hereunder) obtained by Sub-Subtenant in connection therewith, controlling or under common control with Tenantcalculated after Sub-Subtenant has deducted from such excess rent Sub-Subtenant's reasonable brokerage commissions, legal fees, refurbishment and redecorating costs.
Appears in 1 contract
Sources: Sub Sublease Agreement (Retix)
Assignment and Subletting. Not without the prior written consent of Landlord to assign this LeaseSection 15.01. (A) Tenant may not mortgage, to make any subleasepledge, hypothecate or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection otherwise deal with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet the Demised Premises in any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.fmanner without Landlord’s consent,. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet the Demised Premises with Landlord’s consent, which shall not be unreasonably withheld, delayed or conditioned and, if required, with the consent of any portion mortgagee, trust deed holder or ground lessor, on the basis of the Premises without following terms and conditions:
(1) A copy of the assignment or sublease shall be furnished to Landlord's consent .
(2) The assignee shall assume by written instrument all of the obligations of this Lease, and a copy of such assumption agreement shall be furnished to Landlord within ten (10) days of its execution.
(3) Tenant and each assignee shall be and remain liable for the observance of all of the covenants and provisions of this Lease, including but not limited to the payment of the Term Basic Rent and Additional Rent reserved herein, as and when required to be paid, through the entire Term of this Lease, as the same may be renewed, extended or otherwise modified.
(4) The proposed assignee (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or has a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is computed in accordance with generally accepted accounting principles at least equal to or the greater than of (a) the net worth of Tenant as immediately prior to such assignment or (b) the net worth of Tenant herein named on the date hereofof this Lease, provided that Tenant provides and (ii) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord at least thirty ten (3010) days prior notice to the effective date of any such transaction.
(5) Tenant and any assignee shall promptly pay to Landlord 50% of any net consideration received for any assignment or subletting pursuant to either the rent (Basic and Additional), as and when received, in excess of the foregoing clauses Term Basic Rent required to be paid by Tenant for the period affected by said sublease or assignment for the area sublet, computed on the basis of an average square foot rent for the entire Building. In the event of a “turnkey lease,” Landlord and Tenant shall obtain an appraisal from a licensed real estate appraiser familiar with similar properties in Northern New Jersey proximate to the Demised Premises, and any rental received in excess of the market rent for a comparable property shall be subject to Landlord receiving fifty (50%) percent of said consideration, net of any reasonable costs incurred by Tenant in connection with said sublease. Landlord shall not be deemed to be unreasonable in withholding its consent to any proposed sublet or assignment if the intended use by the proposed assignee or the proposed subtenant, though permitted under this Lease, will be (i) more hazardous, or (ii). As used herein) impose greater wear and tear on the Demised Premises, or (iii) result in greater employee or visitor traffic to the term "Affiliate Demised Premises from that which existed immediately prior to the proposed assignment or sublease; or (iv) the proposed use of Tenant" shall mean and refer to any entity controlled by, controlling the prospective subtenant or under common control with Tenantassignee is not a permitted use.
Appears in 1 contract
Sources: Lease Agreement (Merisel Inc /De/)
Assignment and Subletting. Not a. Subtenant shall not, by operation of law or otherwise, assign, sell, mortgage, pledge or in any manner transfer this Sublease or any interest therein, or grant any sublet, concession or license or otherwise permit occupancy of all or any part of the Subleased Premises by any person, without the prior written consent of Landlord to assign this LeaseSublessor, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheldwithheld or delayed, and the prior written consents of the Landlord and Avalon, as required under the Overleases.
b. If Sublessor shall give its consent to any sublease or if Subtenant shall enter into any other sublease permitted hereunder, Subtenant shall in consideration therefor, pay to Sublessor, as additional rent, an amount equal to fifty (50%) percent of any rents, additional charges or other consideration payable under the sublease on a per square foot basis to Subtenant by the subtenant which is in excess of the Fixed Rent and additional rent accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by Subtenant hereunder) pursuant to the terms hereof (including, but not limited to, sums paid for the sale or rental of Subtenant’s fixtures, leasehold improvements, equipment, furniture or other personal property, less, in the case of the sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of Subtenant’s federal income tax returns), less all expenses reasonably and actually incurred by Subtenant on account of brokerage commissions, advertising costs, the direct cost of negotiating and preparing the sublease and the cost of making improvements to the premises so sublet in connection with such sublease, provided that Tenant is not then in default Subtenant shall submit to Sublessor a receipt evidencing the payment of such expenses (or other proof of payment as Sublessor shall require). The sums payable under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five subsection (5b) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during paid to Sublessor as and when payable by the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power subtenant to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantSubtenant.
Appears in 1 contract
Sources: Sublease (Shutterstock, Inc.)
Assignment and Subletting. Not (A) Tenant shall not, without the prior written consent of Landlord Landlord, such consent not to be unreasonably withheld, assign this Lease, to make Lease or any sublease, interest herein or to permit occupancy of sublet the Premises or any part thereof thereof. Any of the foregoing acts without such consent shall be void. If at any time during the term of this Lease Tenant desires to assign this Lease or sublet all or any part of the Premises, Tenant shall give notice to Landlord of such desire, including the name, address and contact party for the proposed assignee or subtenant, the effective date of the proposed assignment or sublease (including the proposed occupancy date by anyone other than the proposed assignee or sublessee), and in the instance of a proposed sublease, the square footage to be subleased, a floor plan professionally drawn to scale depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall in any and all events expire by its terms prior to the scheduled expiration of this Lease, and immediately upon the sooner termination hereof). Landlord may, at its option, exercisable by notice given to Tenant within thirty (30) days next following Landlord's receipt of Tenant's notice, voluntarily elect to recapture the Premises if Tenant is proposing to sublet or by operation terminate this Lease in the event of law, except as hereinafter provided; as Additional Rent, to reimburse an assignment. In the event Landlord promptly for reasonable legal and other expenses incurred by Landlord has not exercised its recapture option or otherwise notified Tenant in connection with any request by Tenant for writing that it is denying consent to assignment the proposed transfer within thirty (30) days next following Landlord's receipt of Tenant's notice, Tenant will again notify Landlord of its proposed transfer and Landlord will have an additional five (5) business days from the date of receipt of the Tenant's second notice to exercise its recapture option or subletting (subject otherwise notify Tenant in writing that it is denying consent to the provisions proper transfer; if Landlord fails to respond within such additional five (5) business day period, then Landlord will be deemed to have waived its recapture option and consent to such transfer. Regardless of Section 5.1.12 hereof); Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation or subletting shall affect alter the continuing primary liability of Tenant (which, following assignment, to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. Landlord shall be joint and several with the assignee); no consent entitled to a $250 fee for consenting to any sublet or assignment.
(B) For purposes of this Article 9, and without limiting the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's basis upon which Landlord may withhold its consent to any proposed assignment or subletting is required both as sublease, the parties agree that it shall not be unreasonable for Landlord to the terms and conditions thereof and as withhold its consent to the consistency of the proposed assignee's such assignment or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee sublease if: (but not as to any sublesseei) Landlord's consent shall be required as to the reasonable creditworthiness of evidence exists that the proposed assignee or sublessee will experience difficulty in view of market conditions then prevailing for leases having terms and conditions comparable to satisfying its financial or other obligations under this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity proposed assignee of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter ifsublessee, in Landlord's reasonable judgmentopinion, is not reputable and of good character; (iii) the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without requested to be subleased renders the balance of the Premises unleasable as a separate area; (iv) Tenant is proposing a sublease at a subrental rate which is less then the then fair market subrental rate for the portion of the Premises being subleased or assigned, or Tenant is proposing to assign or sublease to an existing tenant of the Building or another property owned by the Landlord or by its partners, or to another prospect with whom Landlord or its partners, or their affiliates are then negotiating; (v) the proposed assignee or sublessee will cause Landlord's consent existing parking facilities to be reasonably inadequate, or in violation of code requirements, or require Landlord to increase the parking area or the number of parking spaces to meet code requirements, or the nature of such party's business shall reasonably require more than four (i4) parking spaces per 1,000 rentable square feet of floor space, or (vi) the nature of such party's proposed business operation is inconsistent with the “Permitted Use” specified herein, would otherwise be in conflict with express provisions of this Lease, would violate the terms of any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than other lease for the net worth of Tenant Building in effect as of the date hereof, or would, in Landlord's reasonable judgement, otherwise be incompatible with other tenancies in the Building.
(C) Notwithstanding anything herein contained to the contrary, Tenant may, after notice to, but without the consent of Landlord, assign this Lease to an affiliate (i.e., a corporation or other entity 50% or more of whose capital stock is owned by the same stockholders owning 50% or more of Tenant's capital stock), parent or subsidiary corporation of Tenant or to a corporation or other entity to which it sells or assigns all of substantially all of its assets or stock or with which it may be consolidated or merged (Affiliate”), provided that Tenant provides Landlord such purchasing, consolidated, merged, affiliated or subsidiary corporation shall, in writing, assume and agree to perform all of the obligations of Tenants under this Lease, shall have a net worth at least thirty (30) days prior notice equal to $1,000,000, and it shall deliver such assumption with a copy of such assignment to Landlord within ten (10) days thereafter, and provided further that Tenant shall not be released or subletting pursuant to either discharged from any liability under this Lease by reason of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsuch assignment.
Appears in 1 contract
Assignment and Subletting. Not (1) Sublessee shall not assign, sublet, mortgage, pledge or encumber this Sublease, the Subleased Premises, or any interest in the whole or in any portion thereof, without the prior written consent of Landlord Sublessor (which consent shall not be unreasonably withheld or delayed). For purposes of this Article 16, a transfer, in one transaction or a series of transactions, of a controlling interest in the capital stock or other ownership or membership interests in Sublessee shall be deemed to assign be an assignment of this LeaseSublease. If Sublessee makes any such assignment, to make any subleasemortgage, sublease or to permit occupancy pledge (whether with or without Sublessor's written consent), Sublessee named herein shall nonetheless remain primarily liable for the performance and observation of all of the Premises terms of this Sublease required to be observed or performed by Sublessee hereunder. Fifty percent (50%) of the amount by which any part thereof rentals, fees and charges from time to time received by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord Sublessee in connection with any request by Tenant for consent to such assignment or subletting sublease (subject after first netting out any reasonable brokerage and re-letting expenses actually incurred by Sublessee), exceed the Fixed Rent and Additional Rent payable to Sublessor hereunder (hereinafter referred to as "Excess Rental") shall be paid immediately by Sublessee to Sublessor as Additional Rent under this Sublease. In such event, the Fixed Rent and Additional Rent payable by Sublessee to Sublessor under this Sublease for the balance of the Sublease Term shall be increased by an amount equal to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the BuildingExcess Rental. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord Sublessor shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such requestin its sole discretion, to terminate this Lease Sublease effective as of the proposed effective date of commencement any assignment or sublease, by giving Sublessee written notice thereof within ten (10) days after Sublessor's receipt of said notice front Sublessee; and in the event Sublessee shall propose to sublet only a portion of the Subleased Premises, Sublessor shall have the additional option to terminate this Sublease as to that portion of the Subleased Premises proposed sublease to be sublet. Should Sublessor not elect to so terminate this Sublease in connection with any proposed subletting or assignment; provided, however, that Tenant Sublessor shall continue to have the right to rescind disapprove same (subject to the terms herein). Upon any subletting or assignment by Sublessee in accordance with the terms hereof, any extension option granted herein other than a permitted assignment pursuant to Paragraph 16 (3) shall become null and void. Consent by Sublessor to one or more assignments or sublettings shall not operate as a waiver of Sublessor's rights as to any subsequent assignments or sublettings.
(2) If Sublessee should desire to assign this Sublease or sublet the Subleased Premises (or any part thereof), Sublessee shall give Sublessor written notice thirty (30) days in advance of the proposed effective date of any proposed assignment or sublease, specifying (i) the name, current address, and business of the proposed assignee or sublessee, (ii) the amount and location of the space within the Subleased Premises proposed to be so subleased, (iii) the proposed effective date and duration of the assignment or subletting, and (iv) the proposed rent or consideration to be paid to Sublessee by such assignee or sublessee. Sublessee shall promptly supply Sublessor with financial statements and other information as Sublessor may reasonably request to evaluate the proposed assignment or sublease. Sublessee agrees to reimburse Sublessor for Sublessor's reasonable attorney's fees incurred.
(3) Notwithstanding anything to the contrary in this Sublease, Sublessee shall have the event Landlord elects right, for which Sublessor's prior written consent shall not be withheld or delayed, at any time, and from time to so terminate this Lease time to transfer to any entity into or with which Sublessee is merged or consolidated, or to which substantially all of Sublessee's assets are transferred, or to any corporation that controls or is controlled by notice given Sublessee, or is under common control with Sublessee, provided in any of such events (a) the successor to Landlord Sublessee has a net worth (computed in accordance with generally accepted accounting principles) of at least $50,000,000, and (b) proof satisfactory to Sublessor of such net worth shall have been delivered to Sublessor within five (5) days after the effective date of any such termination notice from Landlordtransaction. In the event of such a transfer, Sublessor shall have the right to increase the security deposit if in which event its reasonable opinion it deems such termination notice increase appropriate. This covenant and assignment shall run with the land and shall bind Sublessee and Sublessee's heirs, executors, administrators, personal, representatives, successors and assigns.
(4) If Sublessee assigns, sublets or makes any other transfer of all or any portion of its interest(s) hereunder, Sublessee named in this Sublease shall remain directly arid primarily responsible for the faithful performance and observance of all of the covenants and obligations on Sublessee's part to be performed in this Sublease.
(5) Any assignee or subtenant hereunder shall be bound by and shall comply with all of no further force or effectthe terms and provisions in this Sublease. As a condition to the effectiveness of any assignment that is permitted hereunder, the assignee shall, by an instrument in writing, within five (5) days after the effective date of the applicable transaction assume and agree to perform (for the express benefit of Sublessor) the terms hereof; Ifand as a condition to the effectiveness of any sublease that is permitted hereunder, at any time during the Term subtenant shall acknowledge in writing (for the express benefit of Sublessor) within five (5) days after the effective date of the applicable transaction the existence of this LeaseSublease and shall covenant not to do or permit to be done anything that would constitute a breach thereof.
(6) Notwithstanding anything contained in this Paragraph 16 to the contrary, Tenant isprovided Sublessee is not in default hereunder, Sublessor shall not unreasonably withhold or delay its consent to Sublessee's request to assign this Sublease or to sublease the Subleased Premises. In determining the reasonableness of Sublessor's approval of or failure to consent to Sublessee's assignment of this Sublease or the subleasing of the Subleased Premises, Sublessor may take into consideration all relevant factors surrounding the proposed sublease and assignment, including without limitation, the following:
(i1) a corporation the business reputation of the proposed assignee or a trust subtenant and its partners, officers, directors and stockholders;
(2) the nature of the business and the proposed use of the Subleased Premises by the proposed assignee or subtenant;
(3) the financial condition of the proposed assignee or subtenant;
(4) the effect that the proposed assignee or subtenant would have on the operations and maintenance of the Building;
(5) whether or not having shares the proposed assignee or subtenant is presently a competitor (or subsidiary, affiliate or parent of beneficial interesta competitor);
(6) restrictions, if any, contained in other leases or agreements affecting the Building;
(7) the extent to which the proposed subtenant or assignee and there shall occur any change in Sublessee provide Sublessor with assurances reasonably satisfactory to Sublessor as to the identity satisfaction of Sublessee's obligations hereunder, including the payment of rent;
(8) restrictions, if any, imposed by the holder of any mortgage encumbering the Building or any portion thereof; taking into account the fact that the Building is Sublessor's corporate headquarters and that portions of the persons then having power to participate in Subleased Premises are visible from Building common areas, including the election or appointment of the directorsatrium, trustees or and from other persons exercising like functions premises occupied by Sublessor and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantother tenants.
Appears in 1 contract
Sources: Sublease Agreement (Netegrity Inc)
Assignment and Subletting. Not Tenant shall not have the right to assign, sublet, transfer or encumber this lease, or any interest therein, without the prior written consent of Landlord to assign this LeaseLandlord. Any attempted assignment, to make any subleasesubletting, transfer or to permit occupancy encumbrance by Tenant in violation of the Premises terms and covenants of this Paragraph shall be void. All cash or other proceeds of any assignment, such proceeds as exceed the rentals called for hereunder in the case of a subletting and all cash or other proceeds of any other transfer of Tenant's interest in this lease shall be paid to Landlord, whether such assignment, subletting or other transfer is consented to by Landlord or not, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. Any assignment, subletting or other transfer of Tenant's interest in this lease shall be for an amount equal to the then fair market value of such interest. These covenants shall run with the land and shall bind Tenant and Tenant's heirs, executors, administrators, personal representatives, representatives in an bankruptcy proceeding, successors, and assigns. Any assignee, sublessee or transferee of Tenant's interest in this lease (all such assignees, sublessees and transferees being hereinafter referred to as "successor"), by assuming Tenant's obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than Landlord by such successors in contravention of this Paragraph. No assignment, subletting or other transfer, whether consented to by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an "event of default" as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, or provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that may at its option collect directly from such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rentall rents becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord from Tenant hereunder, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises no such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice collection shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) construed to constitute a corporation novation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit release of Tenant is thereby impaired. This paragraph shall not apply if from the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all further performance of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantobligations hereunder.
Appears in 1 contract
Sources: Lease Agreement (Cd Warehouse Inc)
Assignment and Subletting. Not (a) Tenant shall not have the right to assign, sublet, transfer or encumber this lease, or any interest therein, without the prior written consent of Landlord which will not be unreasonably denied and/or withheld. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void. Landlord agrees to assign this Leaseuse reasonable efforts in submitting a response to the Tenant's request to sublease within 10 business days from the receipt of such request. Tenant shall be responsible for providing the following information on any proposed third party subleasee, to make any subleasetransferee, or assignee at the time a request is submitted: proposal, agreement document, current financial and general information on third party, and description of third party's intended use for the Premises. All cash or other proceeds of any assignment, such proceeds as exceed the rentals called for hereunder in the case of a subletting minus reasonable costs associated with subleasing, and all cash or other proceeds of any other transfer of Tenant's interest in this lease shall be paid to permit occupancy Landlord, whether such assignment, subletting or other transfer is consented to by Landlord or not, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. Any assignment, subletting or other transfer of Tenant's interest in this lease shall be for an amount equal to the Premises then fair market value of such interest. These covenants shall run with the land and shall bind Tenant and Tenant's heirs, executors, administrators, personal representatives, representatives in any bankruptcy proceeding, successors and assigns. Any assignee, sublessees or transferee of Tenant's interest in this lease (ail such assignees, sublessees and transferees being hereinafter referred to as “successors”), by assuming Tenant's obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than Landlord by such successors in contravention of this Paragraph. No assignment, subletting or other transfer, whether consented to by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an “event of default” as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, as provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, may at its option collect directly from such assignee or subtenant all rents becoming due to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to under such assignment or subletting sublease and apply such rent against any sums due to Landlord for 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.
(subject b) if this lease is assigned to any person or entity pursuant to the provisions of Section 5.1.12 hereofthe Bankruptcy Code, I I U.S.C. 101 et seq. (The “Bankruptcy Code”); no , any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or subletting shall affect the continuing primary liability of Tenant (which, following assignmentdelivered to Landlord, shall be joint and several with remain the assignee); no consent exclusive property of Landlord and shall not constitute property to any Tenant or of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceestate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's consent property under the preceding sentence not paid or delivered to any proposed assignment or subletting is required both as to Landlord shall be held in trust for the terms and conditions thereof and as to the consistency benefit of the proposed assignee's landlord and be promptly paid or subtenant's business with other uses and tenants in the Building. In addition, as delivered to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not (a) Tenant shall not have the right to assign, sublet, transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord, which consent shall not be unreasonably withheld; provided, however, Tenant may upon prior written notice to Landlord assign any of its rights and obligations hereunder to assign any of its affiliates or subsidiaries. Tenant, however shall continue to be liable to Landlord under the terms of this LeaseLease subsequent to any assignment or subletting unless specifically released by Landlord in writing from said obligations. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this Paragraph shall be void. Any assignee, sublessee or transferee of Tenant’s interest in this Lease (all such assignees, sublessees and transferees being hereinafter referred to make any subleaseas “successors”), by assuming Tenant’s obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than landlord by such successors in contravention of this Paragraph. No assignment, subletting or other transfer, whether consented to permit occupancy by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an “event of default” as hereinafter defined, if the Premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, as provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that may at its option collect directly from such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice rents becoming due to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of under such assignment or subletting pursuant sublease and apply such rent against any sums due to either Landlord for Tenant hereunder, and no such collection shall be construed to constitute a novation or a release of Tenant from the foregoing clauses (i) or (ii). As used herein, the term "Affiliate further performance of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant’s obligations hereunder.
Appears in 1 contract
Assignment and Subletting. Not Sub-Subtenant shall not assign this ------------------------- Sub-Sublease or further sublet all or any part of the Sub-Sublease Premises without the prior written consent of Sub-Sublandlord (and the consent of Master Landlord to assign this Leaseand Sublandlord, to make any sublease, or to permit occupancy if such is required under the terms of the Premises or any part thereof by anyone other than TenantMaster Lease and the Sublease), voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord which may be withheld without cause. Sub-Subtenant shall not be in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to default under the terms and conditions thereof and as of this Sub-Sublease, the Master Lease or the Sublease at the time of any request for consent or through the period of time prior to the consistency consent is granted by Master Landlord and Sublandlord. Any request by Sub-Subtenant for Sub-Sublandlord's consent to a specific assignment or Sub-Sublease shall include d) the name of the proposed assignee's , sublessee, or subtenant's business with other uses and tenants in occupant, e) the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness nature of the proposed assignee assignee's, sublessee's or occupant's business to be carried on in view the Sub-Sublease Premises, f) a copy of market conditions then prevailing for leases having terms the proposed assignment or Sub-Sublease, and conditions comparable g) such financial information and such other information as Sub-Sublandlord may reasonably request concerning the proposed assignee, sublessee or occupant or its business. Any assignment or Sub-Sublease approved by Sub-Sublandlord, Master Landlord and Sublandlord shall be subject to the Master Lease, the Sublease and this LeaseSub-Sublease. Sub-Subtenant shall pay to Sub-Sublandlord all reasonable costs incurred related to the review of the subletting or assignment documents and costs incurred in obtaining Master Landlord's and Sublandlord's consent. Additionally, for purposes of this Sub-Sublease, the following transactions relating to Sub-Subtenant shall be deemed an assignment of this Sub-Sublease and shall give rise to the requirement of approval or consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional RentSub-Sublandlord, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have may result in the right to rescind terminate or alter this Sub-Sublease. based upon the above: any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five merger (5) days after the date including, without limitation, a reincorporation merger), consolidation, reorganization, stock exchange, sale of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's the assets or a merger other similar or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth related transaction in which Sub-Subtenant is equal the surviving entity or, if Sub-Subtenant is not the surviving entity, the surviving entity continues to or greater than conduct the net worth of Tenant as business conducted by Sub-Subtenant prior to consummation of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenanttransaction.
Appears in 1 contract
Assignment and Subletting. Not (a) Excluding any assignment or sublease contemplated in Section 10.1(e), without the prior written consent of Landlord, which consent of Landlord shall not be unreasonably withheld, conditioned or delayed, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part thereof, by anyone other than Tenant. Tenant agrees that the provisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least forty-five (45) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within thirty (30) days after receipt of Tenant’s Notice (and all required information). In no event may Tenant publicly offer or advertise all or any portion of the Premises for assignment or sublease at a rental less than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the Project. Tenant shall submit for Landlord’s approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlord’s denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord, or would increase the expenses associated with operating, maintaining and repairing the Project; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of this Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the portion of the Premises retained by Tenant after a proposed sublease would not which constitute a “marketable unit”, meaning that such space would be: (A) deprived of ready access to the then-current corridor and elevator lobby without extension or reconfiguration of the corridor or creation of a connecting corridor; or (B) rendered in violation of any building code requirements; or (C) lacking exterior windows; or
(v) the proposed sublessee or assignee is a current occupant of the Project or a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within six (6) months prior to the date of Tenant’s request and Landlord has vacancy in the Project of a similar size and finish as the space subject to such proposed sublease or assignment; or
(vi) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project above that deemed typical by Landlord for office/lab use in the Project; or
(vii) Tenant is in Default under this Lease
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10, Tenant shall provide Landlord with written notice of any change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant shall be deemed to be an assignment.
(e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger, consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee due to a change of control under Section 10.1(d) above; or (iv) purchases substantially all the assets or equity interests of Tenant (the “Purchaser”). Notwithstanding anything to the contrary in Sections 10.1(a) and (b), 10.2 and 10.3, provided there is no Default under this Lease, Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease, Lease to make any sublease, a Permitted Transferee or to permit occupancy of sublease the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation to a Permitted Transferee provided that: (1) Landlord receives written notice of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to such assignment or subletting sublease within thirty (subject to the provisions 30) days’ of Section 5.1.12 hereof); no such assignment or subletting shall affect the continuing primary liability sublease; (2) with respect to an assignment of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease or a sublease of more than half the Premises, the Permitted Transferee’s net worth and that such assignee or subtenant pays therefor liquidity are each not less than the greater of the Fixed Rent, Additional Rent, (A) Tenant’s net worth and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease liquidity as of the date of commencement this Lease or (B) Tenant’s net worth and liquidity immediately prior to such assignment or subletting; (3) the proposed sublease Permitted Transferee expressly assumes (except a Permitted Transferee which is a deemed assignee under subpart (iii) of this Section 10.1(e) or assignment; provided, however, that Tenant shall have the right to rescind any such request which is a sublessee in the event Landlord elects to so terminate of a sublease under this Lease by notice given Section 10.1(e)) in writing reasonably satisfactory to Landlord all of the obligations of Tenant under this Lease; (4) Landlord receives within five (5) business days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.effective date
Appears in 1 contract
Assignment and Subletting. Not without Without the prior written consent of Landlord to assign Landlord, Tenant shall not (a) sublease the Premises, or assign, convey, encumber, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the interest of Tenant in this Lease, to make any subleasein whole or in part, by operation of law or to otherwise; or (b) permit the use and occupancy of the Premises or by-any part thereof by anyone party other than Tenant, voluntarily or by operation of lawits agents, except as hereinafter provided; as Additional Rentemployees, to reimburse invitees, guests and licensees. Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for agrees that Landlord’s consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's sublease will not be unreasonably withheld or subtenant's business with other uses and tenants in the Buildingdelayed. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant agrees that Landlord shall not be deemed to have unreasonably withheld, provided that withheld its consent if Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor if the greater proposed transferee is a tenant or occupant of the Fixed RentBuilding or negotiating with Landlord for space in the Building, Additional Rent, and all in addition to other payments then payable hereunder, or the then fair market rent for the Premisescircumstances in which Landlord’s consent may reasonably be withheld. If Tenant requests Landlord's consent desires to assign this Lease or to sublet enter into any portion sublease of the Premises such that Premises, Tenant shall not occupy at least 40,000 r.s.f. deliver written notice of such intent to Landlord, together with a copy of the Premises after the date of commencement of such subleaseproposed assignment or sublease and any other information which Landlord reasonably requires, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior to the effective date of the proposed assignment or commencement date of the term of the proposed sublease. Landlord shall advise Tenant within thirty (30) days after receipt by Landlord of Tenant’s notice of intent and such documentation and other information of Landlord’s consent or denial of consent to the proposed assignment or sublease. Any approved sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall pay Landlord monthly during the term of each sublease, 50% of the excess of all rent and other consideration paid by the subtenant during such month over that portion of the Adjusted Monthly Base Rent due under this Lease for such month which is allocable on a square footage basis to the space sublet after the deduction of all reasonable out-of-pocket costs, including, without limitation, construction costs, marketing costs, real estate commissions, attorneys’ fees and lease concessions. Tenant shall pay Landlord 50% of all consideration paid to Tenant on account of each assignment, after the deduction of all reasonable out-of-pocket costs, including, without limitation, construction costs, marketing costs, real estate commissions, attorneys’ fees and lease concessions, when paid by the assignee. In the event of any sublease or assignment, Tenant shall not be released or discharged from any liability, whether past, present or future, under this Lease. For purposes of this Lease, an assignment shall be considered to include a change in the majority ownership or control of Tenant, if Tenant is a corporation whose shares of stock are not traded publicly or a partnership, limited liability company or other business entity. Tenant shall pay Landlord’s reasonable costs and expenses, including attorneys’ fees and fees of architects, engineers and other professionals, incurred in connection with any proposed assignment or sublease, whether or not Landlord consents to such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsublease.
Appears in 1 contract
Sources: Office Lease (Verticalnet Inc)
Assignment and Subletting. Not without the prior written consent (a) Provided no Event of Landlord to assign this LeaseDefault then exists, to make Tenant may sublet all or any sublease, or to permit occupancy part of the Premises or any part thereof by anyone other than Tenant(provided, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (that each such sublease shall expressly be made subject to the provisions of Section 5.1.12 hereof); this Lease, including Paragraph 3, and no sublease term shall extend beyond the end of the Term) and may assign all its rights and interests under this Lease without Landlord's prior consent, except as may be required below in this Paragraph 16. If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed) and delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Paragraph 16 shall affect or reduce any of the obligations of Tenant hereunder and the Tenant shall remain unconditionally liable, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting shall affect the continuing primary liability had been made; provided that performance by any such assignee or sublessee of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance obligations of Tenant under this Lease shall operate be deemed to be performance by Tenant. No sublease or assignment made as a waiver in permitted by this Paragraph 16 shall impose any subsequent instance. Landlord's consent to obligations on Landlord or otherwise affect any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness rights of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to Landlord under this Lease. Landlord's consent Neither this Lease nor the Term hereby demised shall be mortgaged, pledged or hypothecated by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable thereunder. Any mortgage, pledge, sublease or assignment made in violation of this Paragraph 16 shall be void. Tenant shall, within ten (10) days after the execution and delivery of any such assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee sublease of all or subtenant pays therefor the greater substantially all of the Fixed RentPremises, Additional Rent, deliver a conformed copy thereof to Landlord. Within ten (10) days after the execution and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet delivery of any sublease of a portion of the Premises such that Premises, Tenant shall not occupy at least 40,000 r.s.fgive notice to Landlord of the existence and term thereof, and of the name and address of the sublessee thereunder. In no event shall the term of a sublease of all or part of the Premises after extend beyond the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as last day of the date then scheduled end of commencement the proposed sublease or assignment; providedTerm of this Lease.
(b) In addition to Tenant's rights under Subparagraph 16(a), however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of assign its rights and interests under this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent prior consent, to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or the surviving entity in a statutory merger or consolidation of Tenant and with another corporation or entity where the Tenant is not the surviving entity or (ii) any Affiliate to an entity to which Tenant sells substantially all of Tenant its assets provided (as hereinafter defined) whose net worth is equal to or greater than in the net worth case of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii)) that (1) the surviving entity or transferee has a net worth (as determined using generally accepted accounting principles) equal to or greater than that of Tenant immediately prior to such transaction and (2) Tenant gives Landlord no less than thirty (30) prior written notice of such merger or consolidation together with evidence reasonably satisfactory to Landlord of the satisfaction of such net worth requirement. As used hereinTenant may not otherwise assign its rights and interests under this Lease to a surviving entity in a statutory merger or consolidation or to an entity to which Tenant sells substantially all of its assets unless Landlord shall give its prior written consent which Landlord may withhold in its absolute discretion.
(c) In the event of a distribution, as a dividend to the term "Affiliate shareholders of Tenant" shall mean and refer , of stock of a Subsidiary of Tenant (commonly referred to any entity controlled byas a "spin-off"), controlling if the net worth of the Tenant is or under common control will be less than $175,000,000 (as determined using generally accepted accounting principals) after such distribution, Tenant shall, prior to or simultaneously with Tenantsuch distribution, cause the Subsidiary to validly assume or guaranty the obligations of Tenant hereunder pursuant to documentation reasonably acceptable to Landlord.
Appears in 1 contract
Sources: Lease (School Specialty Inc)
Assignment and Subletting. Not (a) Subject to Landlord’s recapture right set forth in Section 10.2, without the prior written consent of Landlord, which consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that conditioned or delayed, Tenant is may not then in default under sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease and that such assignee or subtenant pays therefor the greater encumbering of Tenant’s interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Fixed Rent, Additional Rent, and all other payments then payable hereunderPremises, or any part thereof, by anyone other than Tenant. Tenant agrees that the then fair market rent for the Premisesprovisions governing sublease and assignment set forth in this Article 10 shall be deemed to be reasonable. If Tenant requests desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least fifteen (15) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) business days after receipt of Tenant’s Notice (and all required information). In the event Landlord fails to respond to the Tenant’s Notice within said fifteen (15) business day period, then Tenant may resubmit the same to Landlord (any all other parties entitled to receive notices to Landlord's ) with a cover letter stating “Landlord’s failure to respond shall result in the deemed approval of a proposed sublease or assignment” in all capital letters and in bold face type. In the event Landlord fails to respond to the second Tenant’s Notice within fifteen (15) business days following such second submittal, then such second failure by Landlord shall be deemed consent to assign this Lease such proposed sublease or to sublet assignment by Landlord. In no event may Tenant sublease any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. or assign the Lease to any other tenant of the Premises after Project. For the date avoidance of commencement doubt, any notice or submittal by Tenant pursuant to this Article 10 must be provided in accordance with the requirements of such Article 24.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord shall have may take into consideration any factors that Landlord may deem relevant, and the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from reasons for which Landlord, in which event such termination notice ’s denial shall be of no further force or effect; Ifdeemed to be reasonable shall include, at any time during without limitation, the Term of this Lease, Tenant isfollowing:
(i) a corporation the business reputation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity creditworthiness of any of the persons then having power proposed subtenant or assignee is not reasonably acceptable to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of TenantLandlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Project or Landlord; or
(iii) any proposed assignee’s or sublessee’s use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a partnership current occupant of the Project or association a bona fide prospective tenant of Landlord in the Project as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenant’s request; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Project.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s obligation to obtain Landord’s consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Article 10 and except as provided in Section 10.1(e) below, an assignment shall be deemed to include a change in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock of Tenant occurring by operation of Law or otherwise riot a natural person (and if Tenant is not a corporation or whose shares of stock are not traded publicly. If Tenant is a trust) and there shall occur partnership, any change in the identity partners of any Tenant shall be deemed to be an assignment.
(e) Notwithstanding the generality of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall foregoing, so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of long as Tenant is thereby impaired. This paragraph shall not apply if entering into a transaction described herein for the initial purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant named herein is a corporation and may, subject to the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions remaining terms of this Section 5.2.110 (except 10.2 and 10.3, Tenant may which shall not apply), assign its entire interest under this Lease or sublet any sublease all or a portion of the Premises Premises, without the consent of Landlord's consent , to (i) any an Affiliate, or (ii) a successor of to Tenant resulting from an by purchase or other acquisition of all Tenant’s capital stock or substantially all of Tenant's assets ’s assets, merger, consolidation or reorganization, provided that all of the following conditions are satisfied: (1) Tenant is not then in Default under this Lease beyond applicable notice and cure periods; (2) Tenant shall give Landlord written notice at least fifteen (15) days prior to the effective date of the proposed transfer (or if prior disclosure is limited or restricted by applicable law or contractual confidentiality obligations, then as soon as permissible, but in not event later than the date which is one day following the effective date of the proposed transfer) together with the information required hereunder and such entity shall expressly assume Tenant’s obligations hereunder; (3) with respect to an assignment to an Affiliate, Tenant continues to have a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth that is equal to or greater not materially less than the Tenant’s net worth of Tenant as of the date hereofimmediately prior to such transfer; and (4) with respect to a purchase, provided that merger, consolidation or reorganization which results in Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant ceasing to either exist as a separate legal entity, Tenant’s successor shall have a net worth equal to Tenant’s net worth as of the foregoing clauses (i) or (ii). As used hereindate immediately prior to such transfer, the term "Affiliate of Tenant" shall mean and refer each such transfer being referred to any entity controlled by, controlling or under common control with Tenantas a “Permitted Transfer”.
Appears in 1 contract
Sources: Lease Agreement (XOMA Corp)
Assignment and Subletting. Not without the prior written consent This Lease shall not be assigned, encumbered or in any other manner transferred by Tenant, voluntarily or involuntarily, by operation of Landlord to assign this Leaselaw or otherwise, to make any sublease, or to permit occupancy of nor shall the Premises or any part thereof be sublet, licensed, granted or used or occupied by anyone other than TenantTenant without first obtaining the written consent of Landlord12 A change in the control of Tenant or any guarantor of this Lease whose stock is not publicly held and traded shall be deemed to be an assignment for all purposes of this Lease 13 In the event that Landlord consents to said subletting or assignment, voluntarily any amounts received by or by operation of law, except as hereinafter provided; as Additional Rent, payable to reimburse Landlord promptly Tenant (other than the reasonable value paid to Tenant in repayment for reasonable legal trade fixtures and other expenses incurred by Landlord in connection with any request personal property of Tenant) above the amounts payable by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignmentLandlord hereunder, shall be joint deemed "real estate profit" and several with shall be paid to Landlord. If Landlord permits any such assignment, change or subletting, Tenant agrees to pay Landlord's reasonable legal fees in connection therewith. If Tenant shall at any time during the term of this Lease sublet all or any part of said Premises or assign this Lease, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease is assigned, or if the Premises or any part thereof are subleased or occupied by anybody other than Tenant, Landlord may collect from the assignee); no consent , sublessee or occupant any rent or other charges payable by Tenant under this Lease and apply the amount collected to any the rent and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the foregoing in a specific instance shall operate assignee, sublessee or occupant as a waiver in any subsequent instancetenant nor a release of Tenant from the performance by Tenant under this Lease. Notwithstanding Landlord's consent to any proposed assignment assignment, subletting, occupation or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's use by another person, any subsequent assignment, subletting, occupation or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) use by another person shall require Landlord's prior written consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant14.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord Tenant shall have no right to sublet or assign this Lease, to make any sublease, or to permit occupancy of the Premises all or any part thereof by anyone of the Leased Space without the advance consent in writing of Landlord; provided, however:
A. That any money or other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, economic consideration to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request be received by Tenant as a result of such subletting or assignment, whether denominated as rent, or as payment for consent fixtures, or otherwise, which exceeds, in the aggregate the total sums which Tenant is obligated to assignment or subletting pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Leased Space subject to the provisions sublease or assignment) shall be payable to Landlord as Additional Rent under this Lease without affecting or reducing any obligation of Section 5.1.12 Tenant hereunder.
B. Regardless of Landlord's consent, no subletting or assignment shall release Tenant of Tenant's obligation or alter the primary liability of Tenant to pay the rental and to perform all other obligations to be performed by Tenant hereunder.
C. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof); no .
D. Consent to one assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall not be joint and several with the assignee); no deemed consent to any subsequent assignment or subletting.
E. In the event of default by any assignee of Tenant or any successor of Tenant in the performance of any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or subletting is required both as to successor.
F. If Tenant defaults under the terms and conditions thereof and as to the consistency of this Lease at such time that all or part of the proposed assignee's Leased Space are then HEALTHDRIVE LEASE 09/20/96 15 assigned or subtenant's business with other uses sublet, Landlord may collect directly from the assignee or subtenant all rents becoming due to Tenant under the assignment or sublease and tenants in the Building. In addition, as apply such rents against any sums due to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to Landlord by Tenant under this Lease. Landlord's consent to any assignment or subletting by , and Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease hereby authorizes and that directs such assignee or subtenant pays therefor to make such payments of rent to Landlord upon receipt of notice from Landlord. Such collection of rent by Landlord shall not constitute a novation or a release of Tenant from its liability under the greater terms and conditions of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. this Lease.
G. If Tenant requests Landlord's consent to assign this an assignment of the Lease or to sublet any portion subletting of all or part of the Premises such that Tenant Leased Space, it shall not occupy at least 40,000 r.s.f. submit to Landlord a true, complete and legible copy of the Premises after the date of commencement of such sublease, proposed sublease or assignment. Landlord shall have the option, exercisable by written notice to Tenant given be exercised within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice thereafter, to cancel the within Lease as of the commencement date stated in the above-mentioned assignment or sublease and to enter into a direct lease with such assignee or subtenant. If Landlord elects to cancel the within Lease as stated, then, the term, tenancy, and occupancy of the Leased Space shall terminate as though the cancellation date was the original termination date of this Lease.
H. If the Landlord shall not exercise its right within the terms set forth in Subparagraph G above, its consent to any such proposed assignment or subletting pursuant shall not be unreasonably withheld or delayed.
I. Notwithstanding the foregoing, Tenant, upon appropriate notice to either Landlord, may assign this Lease, or sublet all or part of the foregoing clauses (i) Leased Space to a parent, an affiliate, a wholly-owned subsidiary or (ii). As used hereina successor by merger, consolidation, or division without the term "Affiliate consent of Tenant" Landlord; however, prior written notice of the assignment or sublet shall mean and refer be given by Tenant to any entity controlled by, controlling or under common control with TenantLandlord.
Appears in 1 contract
Sources: Lease Agreement (Healthdrive Corp)
Assignment and Subletting. Not This Lease shall not, nor shall any interest of Tenant, herein, be assignable by Tenant or by operation of law except as follows:
(a) Tenant shall not, without the prior written consent of Landlord to Landlord, assign this Lease, to make or hypothecate Lease or any subleaseinterest herein, or to permit occupancy of the sublet Leased Premises or part thereof, or permit use of Leased Premises by any part thereof by anyone party other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any . Any of the foregoing in a specific instance acts without such consent shall operate as a waiver in any subsequent instance. be void and shall, at the option of Landlord's consent , terminate Lease.
(b) If Tenant desires to any assign Lease or sublet all or part of Leased Premises, Tenant shall give written notice to Landlord setting forth all terms and provisions of proposed assignment or subletting is required both as to the terms sublease, and conditions thereof and as to the consistency identities of the proposed assignee's assignee or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease promptly supply information concerning business background and that such financial condition of proposed assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premisesas Landlord may reasonably request. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 twenty (20) days after receipt Tenant's notice is received, either to sublet such space from Tenant at rental rate and other terms set forth in the proposed sublease, or, in the case of such requestan assignment, to terminate this Lease. If Landlord does not exercise such option, Tenant may assign the Lease as of or sublet such space to such proposed assignee or subtenant on the date of commencement the proposed sublease or assignment; provided, however, that Tenant following further conditions: (1) Landlord shall have the right to rescind any such request approve proposed assignee or subtenant, which approval shall not be unreasonably withheld. Landlord's reasonable determination that assignment may harm or deteriorate value, income, operation, integrity, or operation of Building shall be a valid, but not necessarily the only, reason to disapprove; (2) Assignment or sublease shall be on the same terms set forth in the event Landlord elects to so terminate this Lease by notice given to Landlord within five Landlord; (53) days after the date of such termination notice from Landlord, in which event such termination notice No assignment or sublease shall be valid and no assignee or sublease shall take possession of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) Leased Premises until a corporation or a trust (whether or not having shares of beneficial interest) fully approved and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such executed assignment or subletting pursuant sublease has been delivered to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.Landlord;
Appears in 1 contract
Sources: Lease (Eacceleration Corp)
Assignment and Subletting. Not Tenant shall not assign the right of occupancy under this Lease, or any other interest therein, or sublet the Premises, or any portion thereof, without the prior written consent of Landlord Landlord, which may be withheld at Landlord's discretion. Notwithstanding any assignment of the Lease, or the subletting of the Premises, or any portion thereof, Tenant shall continue to assign be liable for the performance of the terms, conditions and covenants of this Lease, to make any subleaseincluding, or to permit occupancy but not limited to, the payment of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Rent and Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred . Consent by Landlord in connection with any request by Tenant for consent to assignment one or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment more assignments or subletting sublettings shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall not operate as a waiver in any subsequent instance. of Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, rights as to any assignee subsequent assignments or sublettings. Landlord shall have the additional option, which shall be exercised by providing Tenant with written notice, of terminating Tenant's rights and obligations under this Lease (but not or the applicable portion thereof as to any sublesseepartial subletting) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to rather than permitting any assignment or subletting by Tenant. Notwithstanding the foregoing, if and only if the assignee shall have a net worth (determined in accordance with generally accepted accounting principles) at least equal to the net worth of Tenant at the time of such assignment, and such assignee shall not be unreasonably withheld, provided that expressly assume all obligations and liabilities of Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed RentLease, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease to the surviving corporation of a merger, consolidation, reorganization or sublet any portion of the Premises without Landlord's consent to (i) any successor of recapitalization involving Tenant. Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides shall give Landlord at least thirty (30) days days' prior written notice of any such assignment or subletting pursuant proposed assignment. Tenant shall deliver to either Landlord all information and materials as are reasonably required by Landlord to verify the net worth of the foregoing clauses (i) or (ii)assignee. As used hereinIn the event of the transfer and assignment by Landlord of its interest in this Lease and/or sale of the Premises, any of which it may do at its sole option, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for performance of such obligations. The leases assigned to Tenant by Landlord described on the attached Exhibit B, shall become sub-leases under this Lease. During the Term of this Lease, the term "Affiliate Tenant shall be entitled to collect the rent under such subleases and shall pay the principal and interest on the mortgages described below which are in place on the date hereof on the property which is the subject of Tenant" shall mean such subleases.
(1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, dated June 29, 1992, $68,086.40, mortgage on rental property ($709.99 per month).
(2) ▇▇▇▇▇▇ ▇▇▇▇ as Trustee of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Mortgage on 3410 and refer to any entity controlled by, controlling or under common control with Tenant▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ in the monthly amount of $615.71.
Appears in 1 contract
Sources: Lease (Eckler Industries Inc)
Assignment and Subletting. Not without the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a & corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean mean, and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Lease (BioMed Realty Trust Inc)
Assignment and Subletting. Not A. Tenant shall not have the right to assign, sublet, transfer or encumber this lease, or any interest therein, without the prior written consent of Landlord to assign this LeaseLandlord. Any attempted assignment, to make any subleasesubletting, transfer or to permit occupancy encumbrance by Tenant in violation of the Premises terms and covenants of this Paragraph shall be void. All cash or other proceeds of any assignment, such proceeds as exceed the rentals called for hereunder in the case of a subletting and all cash or other proceeds of any other transfer of Tenant's interest in ths lease shall be paid to Landlord, whether such assignment, subletting or other transfer is consented to by Landlord or not, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. Any assignment, subletting or other transfer of Tenant's interest in this lease shall be for an amount equal to the then fair market value of such interest. These covenants shall run with the land and shall bind Tenant and Tenant's heirs, executors, administrators, personal representatives, representatives in any bankruptcy proceeding, successors and assigns. Any assignee, sublessee or transferee of Tenant's interest in this lease (all such assignees, sublessees and transferees being hereinafter referred to as "successors"), by assuming Tenant's obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than Landlord by such successors in contravention of this Paragraph. No assignment, subletting or other transfer, whether consented to by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an "event of default" as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, or provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, may at its option collect directly from such assignee or subtenant all rents becoming due to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to under such assignment or subletting (subject sublease and 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.
B. If this Lease is assigned to any person or entity pursuant to the provisions of Section 5.1.12 hereofthe Bankruptcy Code, 11 U.S.C. ss. 101 et. seq., (the "Bankruptcy Code"); no , any and all monies or ther considerations payable or otherwise to be delivered in connection with such assignment shall be paid or subletting shall affect the continuing primary liability of Tenant (which, following assignmentdelivered to Landlord, shall be joint and several with remain the assignee); no consent to any exclusive property of Landlord and shall not constitute property of Tenant or of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceestate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's consent property under the preceding sentence not paid or delivered to any proposed assignment Landlord shall be held in trust for the benefit of Landlord and be promptly paid or subletting delivered to Landlord.
C. Any person or entity to which this lease is required both as assigned pursuant to the terms and conditions thereof and as to the consistency provisions of the proposed assignee's or subtenant's business with other uses and tenants in the BuildingBankruptcy Code, 11 ▇.▇.▇.▇▇. In additionet. seq., as to any assignee (but not as to any sublessee) Landlord's consent shall be required as deemed, without further act or deed, to the reasonable creditworthiness have assumed all of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default obligations arising under this Lease on and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event assignment. Any such termination notice assignee shall be upon demand execute and deliver to Landlord an instrument of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of confirming such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantassumption.
Appears in 1 contract
Sources: Lease Agreement (Aetrium Inc)
Assignment and Subletting. Not a. Except as provided in Section 21(b), Tenant shall not assign this Lease without the prior written consent of Landlord to assign this LeaseLandlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheld, provided that subsequent to any assignment Tenant is not then in default shall remain primarily liable for the rental to be paid under this Lease and that such assignee or subtenant pays therefor the greater performance of the Fixed Rent, Additional Rent, all terms and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term conditions of this Lease, Tenant is:
(i) a corporation or a trust (. In evaluating whether or not having shares of beneficial interest) and there to provide consent to a proposed assignment or sublease, Tenant, at a minimum, shall occur any change in the identity of any provide to Landlord a copy of the persons then having power proposed assignment or sublease, a current financial statement from the proposed subtenant/assignee, a statement of intended use by the proposed assignee/subtenant, and such other information as may be reasonably requested by Landlord in evaluating the proposed assignment or sublease. Landlord shall be entitled to participate condition his consent on the agreement of Tenant to share equally any increase in rent over the election or appointment rent stated in this Lease for the duration of the directors, trustees proposed assignment or other persons exercising like functions and managing the affairs of Tenant; orsublease.
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1b. However, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's ’s written consent to (if the assignment is made
i) any to a successor corporation into which or with which Tenant is merged or consolidated in accordance with applicable statutory provisions for the merger or consolidation of corporations,
ii) to a wholly-owned subsidiary of Tenant, or
iii) to a corporation to which Tenant resulting from an acquisition of shall sell all or substantially all of Tenant's assets or a ’s assets; and the liabilities of the corporations participating in the merger or consolidation or of Tenant the transferor corporation must be assumed by the corporation surviving the merger or created by the consolidation or by the transferee corporation, in the event of a transfer to a wholly-owned subsidiary or a sale of all or substantially all assets, and that corporation (iiexcept in the case of a wholly-owned subsidiary) any Affiliate of Tenant (as hereinafter defined) whose must have a net worth is at least equal to or greater than the net worth of Tenant as at the time of execution of this Lease. Upon delivery to Landlord, by a successor corporation to which this Lease is assigned or transferred, of the agreement of the corporation to be bound by the terms, covenants, and conditions of this Lease to be performed by Tenant after the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such the assignment or subletting pursuant transfer and documentation satisfactory to either of Landlord demonstrating net worth and operating income, Tenant shall be released and discharged from all obligations later arising under this Lease, except where the foregoing clauses (i) or (ii). As used herein, the term "Affiliate transfer is to a wholly-owned subsidiary of Tenant" .
c. In the event Tenant shall mean and refer assign or sublet the Premises or request the consent of Landlord to any entity controlled byassignment or subletting, controlling or under common control if Tenant shall request the consent of Landlord for any act Tenant proposes to do, then Tenant shall pay Landlord’s reasonable attorneys’ fees and consultants’ fees in connection with Tenantevaluating such requests and/or proposed sublease or assignment not to exceed $2,500.00.
Appears in 1 contract
Assignment and Subletting. Not 11.1 Tenant may not assign this Lease or sublease all or any part of the Leased Premises in any event if Tenant is in default (at the time of Tenant's request or at the time of the effective date of the sublease or assignment) and without the Landlord's prior written consent, which Landlord agrees shall not be unreasonably withheld or delayed. Any request by Tenant for Landlord's consent to an assignment or sublease shall be in writing, shall be sent by certified mail, return receipt requested, and shall contain detailed information concerning: the names and business address of the proposed assignee or subtenant (and if a corporation, the names and percentage ownership of all stockholders); a financial statement of said proposed assignee or subtenant; and detailed description of the nature of the business of the proposed assignee or subtenant; and a detailed description of all terms and conditions of the proposed assignment or subletting. Landlord shall then have thirty (30) days within which to elect to recapture the Leased Premises (or the applicable portion thereof if the proposed sublease is for a portion of the Leased Premises) and to release Tenant from its obligations hereunder (which in the case of a proposed sublease of a portion of the Leased Premises shall be limited to the portion of the Leased Premises proposed to be sublet in which event Base Rent and Tenant's Proportionate Share shall be reduced proportionately to reflect the decrease in the square footage constituting the remainder of the Leased Premises). If Landlord shall elect to terminate the Lease as above provided Landlord shall advise Tenant of its election in writing by certified mail, return receipt requested, prior to the expiration of thirty (30) days from the date of receipt of Tenant's notice. If Landlord shall elect to terminate the Lease with respect to all or a portion of the Leased Premises, the Lease shall terminate (with respect to all or such portion, as applicable) on the last day of the forty-fifth (45th) day succeeding such notice of termination. In such event, Base Rent and Additional Rent due shall be paid by Tenant to Landlord effective up to and including the date of termination. Tenant agrees that it will vacate and surrender possession and deliver the Leased Premises or the applicable portion thereof to Landlord on the date of termination hereinabove provided.
11.2 In the event Landlord does not elect to recapture the Leased Premises or the applicable portion thereof and terminate the Lease as hereinabove provided and Landlord consents in writing to such proposed assignment or sublease then in that event Tenant may assign this Lease or sublease all or any portion or part of the Leased Premises to the entity set forth in Tenant's notice to Landlord but only strictly in accordance with the terms and conditions contained in said notice, provided: (a) any assignees (or sublessees) undertake in writing to assume the terms and conditions of this Lease; (b) that with respect to any said assignment, Landlord shall receive one-half of the consideration for such assignment (net of any brokerage fees and the reasonable costs of such assignment), if any, to be paid to Tenant by the assignee in connection with the assignment; and with respect to any subletting, Landlord shall receive one-half of the amount of any Base Rent and/or Additional Rent to be paid to Tenant by its subtenant in excess of the Base Rent and/or Additional Rent due from Tenant to Landlord (net of any brokerage fees and the reasonable costs of such subletting); and (c) in any event, Tenant shall remain directly and primarily liable for the performance of the terms and conditions of this Lease. Notwithstanding anything to the contrary contained within this Lease, Landlord shall, at all times, require and demand that Tenant pay and perform the terms and conditions of the Lease notwithstanding any assignment or sublease.
11.3 Notwithstanding anything hereinabove to make the contrary, Landlord may withhold its consent and no such assignment or subletting shall be made to any subleasetenant which shall: (a) occupy all or any portion of the Leased Premises for any non-permitted use or any use which would create a greater likelihood of damage, wear or tear to the Building or Leased Premises than that of Tenant; (b) adversely affect the character of the Building; (c) in any way violate the applicable ordinances, rules and regulations of applicable governmental boards and bureaus having jurisdiction thereof, or to permit occupancy of the Premises carrier of the fire insurance or other insurance to be provided under this Lease or the Master Deed; (d) which would increase the cost of insurance to the Leased Premises, Building, Condominium Common Elements or personal property or contents of other tenants; (e) be classified as an "Industrial Establishment" under ISRA or other Environmental Laws (as defined in Paragraph 31) or regulation promulgated pursuant thereto; (f) cause a density of traffic or make demands on building systems, services, maintenance, infrastructure or facilities unreasonably in excess of those related to Tenant's occupancy; (g) be an existing tenant of and is vacating premises in the Building, and/or 2345 Lamington Road, Bedminster, New Jersey, and/or 1410, 1420 or 14▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, if then owned by Land▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇; ▇▇ (▇) ▇▇ a party with whom Landlord has negotiated within the period of six months preceding Tenant's request for consent.
11.4 Landlord's consent to any part thereof by anyone other than sublease or assignment hereunder shall not be deemed a consent to any further proposed assignment or sublease. In the event Tenant, voluntarily its assignee or by operation of lawsubtenant desires to further or subsequently assign or sublet, except Tenant or its successor shall be subject to the same requirements as hereinafter provided; as Additional Rent, to provided in Subsections 11.1 through 11.3 hereof.
11.5 Tenant shall reimburse Landlord promptly for its reasonable expenses, including but not limited to reasonable legal and other expenses expenses, if any, incurred by Landlord in connection with any Tenant's request to assign or sublet hereunder. Furthermore, if required by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (whichlaw, following assignmentTenant, at its expense, shall be joint and several with notify the assignee); no consent to any appropriate governmental authorities of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both sublease and shall obtain all necessary approvals as well as a new Certificate of Occupancy if required.
11.6 Notwithstanding the provisions of this Paragraph 11 to the terms contrary, and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that (a) Tenant is not then in default under this Lease beyond any applicable notice and that such assignee grace period (at the time of Tenant's request or subtenant pays therefor the greater at .the time of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion effective date of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided), howeverand (b) the Security Deposit shall continue to be maintained as required in Paragraph 56, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate assign this Lease by notice given or sublease all or any part of the Leased Premises as to Landlord within five any Permitted Transfer (5as defined herein) days after without obtaining Landlord's consent and without being subject to the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term recapture provisions of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares in each case subject only to the provisions of beneficial interestSubparagraph 11.2(c), the restrictions set forth in Subparagraphs 11 .3(a)-(g) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions Subsections 11.4 and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant11.
Appears in 1 contract
Assignment and Subletting. Not without Subtenant may not assign, sublet, transfer, pledge, hypothecate or otherwise encumber the prior written consent of Landlord to assign this LeasePremises, to make any subleasein whole or in part, or to permit the use or occupancy of the Premises or any part thereof by anyone other than TenantSubtenant and Sublandlord (or any other subsidiary of Sublandlord), voluntarily or by operation of lawunless Subtenant has obtained (a) Sublandlord’s consent, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheldwithheld or delayed, provided that Tenant and (b) Master Landlord’s consent in accordance with Article 6 of the Master Lease. Regardless of Sublandlord’s or Master Landlord’s consent, no subletting or assignment shall release Subtenant of its obligations hereunder. Any rent or other consideration payable to Subtenant pursuant to any sublease or assignment permitted by this paragraph which is not then in default excess of the Rent payable to Sublandlord pursuant hereto (“Sublease Bonus Rent”) shall be divided equally between Sublandlord and Subtenant, after payment to Master Landlord of any amount required to be paid under this the Master Lease and that such assignee or subtenant pays therefor deduction of any brokerage and marketing fees paid to any licensed real estate broker in connection with the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any . All such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice Sublease Bonus Rent shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed determined on a recognized securities exchangedollars per square foot basis, by aggregating all subrents received by Subtenant and dividing such amount by the total number of square feet of subleased space and subtracting from such amount the Rent per square foot payable by Subtenant for such space. Notwithstanding the foregoing provisions of this Section 5.2.1foregoing, Tenant Subtenant may assign this Lease sublet the Premises, or sublet any portion thereof, without Sublandlord’s consent, if such sublease or assignment would be permitted without the consent of Master Landlord under Section 6.1.E of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with TenantMaster Lease.
Appears in 1 contract
Sources: Sublease Agreement (Asterias Biotherapeutics, Inc.)
Assignment and Subletting. Not Tenant shall not sublet the Premises or the interest of Tenant therein in whole or in part, or assign this Lease or the interest of Tenant therein in whole or in part, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. Further, Tenant may not sell, lien, or encumber its interest in this Lease, or assign or delegate the management or permit the use or occupancy of the Premises in whole or in part by anyone other than Tenant without the prior written consent of Landlord, which consent Landlord may withhold in its sole discretion. Landlord and Tenant acknowledge and agree that 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 of this Paragraph 9. In no event shall this Lease be assignable by operation of any law, without the prior written consent of Landlord to assign this Leasewhich consent shall not be unreasonably withheld, to make and Tenant's rights hereunder may not become, and shall not be listed by Tenant as an asset under any subleasebankruptcy, insolvency, or to permit occupancy of the Premises reorganization proceedings. No assignment, transfer, mortgage, sublease or any part thereof by anyone other than Tenantencumbrance, voluntarily whether or by operation of lawnot approved, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred no indulgence granted by Landlord to any assignee or subtenant, shall in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect way impair the continuing primary liability of Tenant (which, following assignment, which after an assignment shall be joint and several with the assignee); ) of Tenant hereunder, and no consent approval in a particular instance shall be deemed to any be a waiver of the foregoing in a specific instance shall operate as a waiver obligation to obtain Landlord's approval in any subsequent instanceother case. Landlord's consent to If for any proposed approved assignment or subletting is required both sublease Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, in excess of the base rent hereunder, or in case of a sublease of part of the Premises, in excess of the portion of such rent fairly allocable to such part, after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account, Tenant shall pay to Landlord as additional rent one-half of the full excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Notwithstanding the foregoing, if Tenant shall offer any sublease or assignment of space in the Premises for less than the current asking price of Landlord for space comparable in size and usage by Landlord to a prospective tenant in an arms length transaction at the current fair market value for such space (which asking price Landlord shall provide to Tenant upon request made therefor), then Landlord shall be entitled to receive all of the full excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. Notwithstanding any provision of this Lease to the terms and conditions thereof and as contrary, should Tenant receive consent from Landlord to the consistency of the proposed assignee's sublease or subtenant's business with other uses and tenants assign its interest in the Building. In additionPremises and seek to sublease or assign its interest in the Premises in accordance with this paragraph, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withhelduse the name of Landlord, provided that Tenant is not then in default under this Lease and that such assignee any insignia of Landlord, or subtenant pays therefor the greater any likeness of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent Building in any of its advertising for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Lease Agreement (Pharmaceutical Product Development Inc)
Assignment and Subletting. Not without Tenant shall not assign, transfer, mortgage or pledge this Lease or grant a security interest in Tenant's rights hereunder or sublease (which term shall be deemed to include the prior written consent granting of Landlord to assign this Lease, to make concessions and licenses and the like) all or any sublease, or to permit occupancy part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any part thereof by anyone other than Tenantrights arising under this Lease to be assigned, voluntarily transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, except or permit the occupancy of the Premises by anyone other than Tenant; provided, however, that (a) Tenant shall have the right to sublease the Premises or assign this Lease to any entity that controls, is controlled by or is under common control with Tenant without Landlord's prior consent so long as hereinafter providedTenant provides Landlord with prior written notice thereof and so long as such entity, in the case of an assignment, assumes all of the Tenant's obligations hereunder by a written instrument approved by Landlord and so long as such entity shall have a net worth immediately after such assignment at least equal to that of Tenant as of the date of this Lease; as Additional Rentand (b) Tenant shall have the right, subject to the below provisions of this Section 8.15, to sublet all or portions of the Premises to third parties upon obtaining Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed. In connection with any request by Tenant for such consent to an assignment or subletting, Tenant shall submit to Landlord in writing (i) the name of the proposed assignee or subtenant, (ii) such information as to its reputation, financial responsibility and standing as Landlord may reasonably require, including, without limitation, business references and references from prior landlords, and (iii) all of the terms and provisions upon which the proposed assignment or subletting is to be made. As additional rent, Tenant shall reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.consent
Appears in 1 contract
Sources: Lease Agreement (Broadvision Inc)
Assignment and Subletting. Not (1) Sublessee shall not assign, sublet, mortgage, pledge or encumber this Sublease, the Subleased Premises, or any interest in the whole or in any portion thereof, without the prior written consent of Landlord Sublessor (which consent shall not be unreasonably withheld or delayed). For purposes of this Article 16, a transfer, in one transaction or a series of transactions, of a controlling interest in the capital stock or other ownership or membership interests in Sublessee shall be deemed to assign be an assignment of this LeaseSublease. If Sublessee makes any such assignment, to make any subleasemortgage, sublease or to permit occupancy pledge (whether with or without Sublessor's written consent), Sublessee named herein shall nonetheless remain primarily liable for the performance and observation of all of the Premises terms of this Sublease required to be observed or performed by Sublessee hereunder. Fifty percent (50%) of the amount by which any part thereof rentals, fees and charges from time to time received by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord Sublessee in connection with any request by Tenant for consent to such assignment or subletting sublease (subject after first netting out any reasonable brokerage and re-letting expenses actually incurred by Sublessee), exceed the Fixed Rent and Additional Rent payable to Sublessor hereunder (hereinafter referred to as "Excess Rental") shall be paid immediately by Sublessee to Sublessor as Additional Rent under this Sublease. In such event, the Fixed Rent and Additional Rent payable by Sublessee to Sublessor under this Sublease for the balance of the Sublease Term shall be increased by an amount equal to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the BuildingExcess Rental. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord Sublessor shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such requestin its sole discretion, to terminate this Lease Sublease effective as of the proposed effective date of commencement any assignment or sublease, by giving Sublessee written notice thereof within ten (10) days after Sublessor's receipt of said notice from Sublessee; and in the event Sublessee shall propose to sublet only a portion of the Subleased Premises, Sublessor shall have the additional option to terminate this Sublease as to that portion of the Subleased Premises proposed sublease to be sublet. Should Sublessor not elect to so terminate this Sublease in connection with any proposed subletting or assignment; provided, however, that Tenant Sublessor shall continue to have the right to rescind disapprove same (subject to the terms herein). Upon any subletting or assignment by Sublessee in accordance with the terms hereof, any extension option granted herein other than a permitted assignment pursuant to Paragraph 16 (3) shall become null and void. Consent by Sublessor to one or more assignments or sublettings shall not operate as a waiver of Sublessor's rights as to any subsequent assignments or sublettings.
(2) If Sublessee should desire to assign this Sublease or sublet the Subleased Premises (or any part thereof), Sublessee shall give Sublessor written notice thirty (30) days in advance of the proposed effective date of any proposed assignment or sublease, specifying (i) the name, current address, and business of the proposed assignee or sublessee, (ii) the amount and location of the space within the Subleased Premises proposed to be so subleased, (iii) the proposed effective date and duration of the assignment or subletting, and (iv) the proposed rent or consideration to be paid to Sublessee by such assignee or sublessee. Sublessee shall promptly supply Sublessor with financial statements and other information as Sublessor may reasonably request to evaluate the proposed assignment or sublease. Sublessee agrees to reimburse Sublessor for Sublessor's reasonable attorney's fees incurred.
(3) Notwithstanding anything to the contrary in this Sublease, Sublessee shall have the event Landlord elects right, for which Sublessor's prior written consent shall not be withheld or delayed, at any time, and from time to so terminate this Lease time to transfer to any entity into or with which Sublessee is merged or consolidated, or to which substantially all of Sublessee's assets are transferred, or to any corporation that controls or is controlled by notice given Sublessee, or is under common control with Sublessee, provided in any of such events (a) the successor to Landlord Sublessee has a net worth (computed in accordance with generally accepted accounting principles) of at least $50,000,000, and (b) proof satisfactory to Sublessor of such net worth shall have been delivered to Sublessor within five (5) days after the effective date of any such termination notice from Landlordtransaction. In the event of such a transfer, Sublessor shall have the right to increase the security deposit if in which event its reasonable opinion it deems such termination notice increase appropriate. This covenant and assignment shall run with the land and shall bind Sublessee and Sublessee's heirs, executors, administrators, personal, representatives, successors and assigns.
(4) If Sublessee assigns, sublets or makes any other transfer of all or any portion of its interest(s) hereunder, Sublessee named in this Sublease shall remain directly and primarily responsible for the faithful performance and observance of all of the covenants and obligations on Sublessee's part to be performed in this Sublease.
(5) Any assignee or subtenant hereunder shall be bound by and shall comply with all of no further force or effectthe terms and provisions in this Sublease. As a condition to the effectiveness of any assignment that is permitted hereunder, the assignee shall, by an instrument in writing, within five (5) days after the effective date of the applicable transaction assume and agree to perform (for the express benefit of Sublessor) the terms hereof; Ifand as a condition to the effectiveness of any sublease that is permitted hereunder, at any time during the Term subtenant shall acknowledge in writing (for the express benefit of Sublessor) within five (5) days after the effective date of the applicable transaction the existence of this LeaseSublease and shall covenant not to do or permit to be done anything that would constitute a breach thereof.
(6) Notwithstanding anything contained in this Paragraph 16 to the contrary, Tenant isprovided Sublessee is not in default hereunder, Sublessor shall not unreasonably withhold or delay its consent to Sublessee's request to assign this Sublease or to sublease the Subleased Premises. In determining the reasonableness of Sublessor's approval of or failure to consent to Sublessee's assignment of this Sublease or the subleasing of the Subleased Premises, Sublessor may take into consideration all relevant factors surrounding the proposed sublease and assignment, including without limitation, the following:
(i1) a corporation the business reputation of the proposed assignee or a trust subtenant and its partners, officers, directors and stockholders;
(2) the nature of the business and the proposed use of the Subleased Premises by the proposed assignee or subtenant;
(3) the financial condition of the proposed assignee or subtenant;
(4) the effect that the proposed assignee or subtenant would have on the operations and maintenance of the Building;
(5) whether or not having shares the proposed assignee or subtenant is presently a competitor (or subsidiary, affiliate or parent of beneficial interesta competitor);
(6) restrictions, if any, contained in other leases or agreements affecting the Building;
(7) the extent to which the proposed subtenant or assignee and there shall occur any change in Sublessee provide Sublessor with assurances reasonably satisfactory to Sublessor as to the identity satisfaction of Sublessee's obligations hereunder, including the payment of rent;
(8) restrictions, if any, imposed by the holder of any mortgage encumbering the Building or any portion thereof; taking into account the fact that the Building is Sublessor's corporate headquarters and that portions of the persons then having power to participate in Subleased Premises are visible from Building common areas, including the election or appointment of the directorsatrium, trustees or and from other persons exercising like functions premises occupied by Sublessor and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantother tenants.
Appears in 1 contract
Sources: Sublease Agreement (Netegrity Inc)
Assignment and Subletting. Not (a) Tenant shall not assign, sublease, transfer, pledge or encumber this Lease or any interest therein without the Landlord's prior written consent, whose consent shall not be unreasonably withheld, conditioned, delayed or denied, except (1) to an affiliate of Landlord Tenant or (2) to assign a purchaser of all or substantially all the business of Tenant or a successor-in-interest to the business of Tenant so long as (A) Tenant's obligations hereunder are assumed by the acquiring entity or successor in interest and (B) the tangible net worth of the surviving or created entity is not less than the tangible net worth of Tenant as of the date of execution of this Lease: or Tenant shall in no event be allowed to enter into a partial assignment of tenant's leasehold interest. Any attempted assignment, to make any sublease, sublease or to permit occupancy other transfer or encumbrance by Tenant in violation of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation terms and covenants of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, this Paragraph shall be joint and several with void.
(b) In the assignee); no consent to any of the foregoing in a specific instance event that Tenant shall operate as a waiver in any subsequent instance. desire Landlord's consent to any proposed assignment or either the subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assigneePremises in whole or in parts or the assignment of Tenant's or subtenantentire interest under the Lease, Tenant shall give Landlord one (1) month's business with other uses and tenants in the Building. In addition, as to any assignee prior written notice thereof
(but not as to any sublesseec) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Notwithstanding Landlord's consent to any assignment or subletting by Tenant, Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under remain liable for the full and faithful performance of the covenants and conditions of this Lease unless expressly released in writing by Landlord.
(d) Should Landlord consent to such assignment of the Lease, or to a sublease of all or any part of the Leased Premises, Tenant does hereby guarantee payment of all rent herein reserved until the expiration of the term hereof and that such no failure of Landlord to promptly collect from any assignee or subtenant pays therefor the greater sublessee, or any extension of the Fixed Renttime for payment of such rents, Additional Rent, and all other payments then payable shall release or relieve Tenant from its guaranty or obligation of payment of such rents. Any assignment by Landlord shall not relieve Tenant of its obligations hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion .
(e) The form of the Premises such that Tenant Sublease is substantially the same form as the current lease. The Sublessee shall not occupy provide first, last and security deposits.
(f) Reasonable grounds for deciding the Tenant's request by Landlord include: (i) Financial strength of the proposed sublessee/assignee must be at least 40,000 r.s.f. equal to that of the Premises after existing tenant; (ii) Business reputation of the date proposed sublessee/assignee must be in accordance with generally acceptable commercial standards; (iii) Use of commencement the premises by the proposed sublessee/assignee; (iv) Use of such subleasethe premises will not violate any other agreements affecting the premises, Landlord or other tenants. The Sublessee shall have provide such financial statements as may be reasonably requested by Landlord, which Landlord shall use to help deem financial acceptability.
(g) The Sublessee shall pay its rent payments directly to Landlord under the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as terms and conditions of the date of commencement sublease. Tenant and Landlord shall execute separate agreement allowing the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice sublease and agreement shall be of no further force or effect; Ifcontingent upon one another.
(h) The covenants in this Paragraph concerning assignment shall run with the land and shall bind Tenant and Tenant's heirs, at any time during the Term of this Leaseexecutors, Tenant is:administrators, personal representatives, successors and permitted assigns.
(i) In the event that Tenant is a corporation or (other than a trust (whether or not having shares of beneficial interest) and there shall occur any change in corporation whose stock is regulary traded on a nationally recognized stock exchange), the identity conveyance of any of the persons then having power stock in such corporation shall be deemed to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs be an assignment of Tenant; or
(ii) 's leasehold interest hereunder. Should Tenant be a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in partnerships the identity of any of the persons who then are members dissolution of such partnership or association or who comprise Tenant; Tenant the assignment of any interest therein by any general partner thereof shall so notify Landlord and Landlord may terminate this Lease by notice also be determed to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from be an acquisition of all or substantially all assignment of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereofleasehold interest, provided that Tenant provides Landlord at least thirty (30) days prior notice of hereunder. Any such assignment of partnership interest or subletting pursuant conveyanceof corporate stock in Tenant, as the case may be, shall therefore be subject to either of the foregoing clauses (i) or (ii). As used restrictions set forth herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Office Lease Agreement (Zix Corp)
Assignment and Subletting. Not (a) Except as otherwise set out in this Article, Tenant shall not mortgage, encumber or assign its interest in this Lease or sublet all or any part of the Premises without the prior written consent of Landlord to assign this LeaseLandlord, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee conditioned or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests delayed.
(b) Landlord's consent to assign this Lease any one assignment or to sublet any portion sublease will not act as a waiver of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. requirement of obtaining the Premises after the date of commencement of such Landlord's consent to any subsequent assignment or sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:.
(ic) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power Should Tenant wish to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Premises, Tenant shall submit to Landlord a written request (“Tenant's Request”) for Landlord's consent to such assignment or subletting. Tenant's Request shall include, at a minimum, the name and address of the proposed assignee or subtenant, the proposed use of the Premises, financial statements of the proposed assignee or sublessee in form satisfactory to Landlord, a copy of the proposed assignment or sub-lease and any other documentation reasonably required by Landlord.
(d) Notwithstanding anything contained in this Lease to the contrary, Landlord shall not be obligated to consider any request by Tenant to consent to any proposed assignment of this Lease or sublet of all or any part of the Premises unless (i) any successor Tenant is current in payment of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant Rent, and (ii) each request by Tenant is accompanied by a nonrefundable fee payable to Landlord in the amount of Five Hundred and 00/100 Dollars ($500.00) to cover Landlord's expenses incurred in processing each Tenant's Request. Neither Tenant's payment nor Landlord's acceptance of the said fee shall be construed to impose any Affiliate obligation whatsoever upon Landlord to consent to Tenant's Request. Landlord shall have the right to charge Tenant an additional or higher fee in the event the processing of the proposed assignment or subletting shall require more than two (2) hours to negotiate and/or draft the necessary documents.
(e) Landlord and Tenant agree that any one of the following factors will be reasonable grounds for declining the Tenant's request:
(as hereinafter definedi) whose net worth financial strength of the proposed subtenant/assignee is equal to or greater than not of the net worth strength Landlord would require of Tenant any prospective tenant for similar properties in the Complex as of the date hereofof the request;
(ii) business reputation of the proposed subtenant/assignee is not in accordance with generally acceptable commercial standards and the businesses of other tenants in the Complex;
(iii) the proposed subtenant/assignee is an existing tenant or occupant of the Complex, provided that or a person or entity with whom Landlord is then dealing with regard to leasing space in the Complex, or with whom Landlord has had any dealings within the past six months with regard to leasing space in the Complex;
(iv) use of the Premises will violate the exclusive right(s) of any other tenant of the Complex, any other agreements affecting the Premises, the Landlord or other tenants.
(f) If Tenant provides Landlord at least thirty sublets all or part of the Premises, for a net consideration (30i.e. all rent and other forms of income or payment to Tenant from the subtenant less all actual, reasonable and necessary brokerage commissions and other costs incurred by Tenant in obtaining a subtenant) days prior notice which is in excess of the Rent accruing under the Lease during the term of the sublease, then Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantexcess consideration.
Appears in 1 contract
Sources: Lease Agreement (AxoGen, Inc.)
Assignment and Subletting. Not So long as no Event of Default by Tenant has occurred and is continuing, Tenant may, at Tenant’s sole expense, without the prior written consent of Landlord to assign this LeaseLandlord, to make any subleaseassign, sublease or to permit grant a right of occupancy or license of the Premises all or any part thereof by anyone other than Tenant, voluntarily or by operation portion of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignmentany Person; provided, however, that any such Person or other Person is not a debtor or debtor-in-possession in a voluntary or involuntary bankruptcy proceeding at the commencement of the assignment or subletting. Any assignee or subtenant shall assume in writing any obligations of Tenant with respect to the Premises assigned or subleased arising from and after the effective date of such assignment or subletting; provided, however, that no such assignment or subletting shall become effective until a fully executed copy of an assignment and assumption agreement or sublease agreement, as the case may be, shall have been delivered to Landlord. Any proposed assignment or sublease document shall provide that the assignee or subtenant thereunder shall be liable for all of the obligations of Tenant under this Lease from and after the date of the assignment or subletting. Notwithstanding any such assignment or subletting, but subject to the terms and provisions of Section 13.3 below, Tenant shall not be released from its primary liability hereunder and shall continue to be obligated for all obligations of “Tenant” in this Lease, which obligations shall continue in full effect as obligations of a principal and not of a guarantor or surety, as though no assignment or subletting had been made. In the event Tenant is not released pursuant to Section 13.3 below, Tenant will have the right right, subsequent to rescind any assignment or subletting (a) to receive a duplicate copy of each notice of default sent by Landlord to Tenant or any assignee or subtenant (but such request in notice shall be effective as against the event Tenant, as well as any subsequent assignees or subtenants, even if a copy has not been delivered to such assignee or subtenant), and (b) to cure any default by Tenant or other assignee or subtenant under the Lease within the cure period provided for hereunder. Tenant shall provide written notice to Landlord elects to so terminate of any assignment or sublease of all or any portion of this Lease by notice given to Landlord or the Premises and an executed copy of the agreement of assignment and assumption or sublease agreement within five sixty (560) days after the date execution thereof. To the extent Tenant is not released pursuant to Section 13.3 below, such assignee or subtenant fails to perform on behalf of Tenant the obligations of Tenant hereunder and Tenant performs such obligations, then Tenant shall be subrogated to the rights of Landlord as against such assignee or subtenant in respect of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantperformance.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital Trust IV, Inc.)
Assignment and Subletting. Not Tenant may not assign this Lease or sublet the Leased Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld; and any attempted assignment or subletting without such consent shall be invalid. At least thirty (30) days prior to the proposed effective date of such assignment or sublease, Tenant shall provide Landlord to assign this Leasea signed original of the document. Tenant shall also provide, at Landlord's request, any information on the proposed assignee or subtenant that Landlord may require to make any sublease, or to permit occupancy a determination of the quality of such proposed assignee or subtenant. In the event of a permitted assignment or subletting, Tenant shall nevertheless at all times remain fully responsible and liable for the payment of rent and the performance and observance of all of Tenant's other obligations under the terms, conditions and covenants of this Lease except as may be otherwise provided for herein. No assignment or subletting of the Leased Premises or any part thereof shall be binding upon Landlord unless such assignee or subtenant shall deliver to Landlord an instrument (in record able form, if requested) containing an agreement of assumption of all of Tenant's obligations under this Lease. Upon the occurrence of a default hereunder, if all or any part of the Leased Premises are then assigned or sublet, Landlord, in addition to any other remedies provided by anyone other than Tenant, voluntarily this Lease or by operation of law, except as hereinafter provided; as Additional Rentmay, at its option, collect directly from the assignee or subtenant all rent becoming due to reimburse Landlord promptly by reason of the assignment or subletting. Any collection by Landlord from the assignee or subtenant shall not be construed to constitute a waiver or release of Tenant from the further performance of its obligations under this Lease or the making of a new lease with such assignee or subtenant. If Tenant shall make any assignment or sublease, with Landlord's consent, for a rental in excess of the rent payable under this Lease (including any applicable escalations), after deducting reasonable legal and other customary expenses incurred by Landlord Tenant in connection with any request therewith and paying to Landlord reasonable and customary expenses incurred by it in connection therewith, Tenant for consent shall retain fifty percent (50%) of such excess and shall pay the remaining fifty percent (50%) to assignment or subletting (subject Landlord. Notwithstanding anything in this Article 13 to the provisions contrary, Tenant shall have the right to sublease not exceeding ten thousand (10,000) rentable square feet of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent Leased Premises to any reputable third party. Landlord may, in the reasonable exercise of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's its discretion, refuse to give its consent to any proposed assignment or subletting is required both as to for any reason (other than the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable or subtenant), including, but not limited to this Lease. Landlord's determination that its interest in the Lease or the Leased Premises would be adversely affected by (i) the business reputation of the proposed assignee or subtenant, (ii) the prevailing market or quoted rental rates for space in the Building or other comparable buildings, or (iii) the proposed use of the Leased Premises by, or business of, the proposed assignee or subtenant. If Landlord refuses to give its consent to any proposed assignment or subletting by Tenant shall not be unreasonably withheldsubletting, provided that Tenant is not then in default under Landlord may, at its option, within thirty (30) days after receiving notice of the proposal, terminate this Lease and that such assignee or subtenant pays therefor in the greater case of the Fixed Rent, Additional Rent, and all other payments then payable hereundera proposed assignment, or in the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign case of proposed subletting, terminate this Lease or with respect to sublet any the portion of the Leased Premises such that proposed to be sublet, by giving Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior written notice of such assignment termination, whereupon this Lease (in the case of a proposed assignment), or subletting pursuant to either portion of the foregoing clauses (i) or (ii). As used hereinLease with respect to the proposed area to be sublet, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantterminate.
Appears in 1 contract
Sources: Lease Agreement (Symbion Inc/Tn)
Assignment and Subletting. Not without Any assignment, mortgage, pledge, hypothecation or transfer of all or any portion of Tenant's interest under this Lease or any subletting of all or any portion of the prior written consent Premises shall be subject to the provisions of Landlord this Section.
(a) Except in the cases of Permitted Transfers (as defined below) Tenant agrees not to assign assign, mortgage, pledge, hypothecate or otherwise transfer this Lease, or sublet (which term, without limitation, shall include granting of concessions, licenses and the like) the whole or any part of the Premises without, in each instance, having first received the consent of Landlord, which shall not be unreasonably withheld or delayed. Any assignment or sublease made without such consent shall be void, and in any case where Landlord consents to make such assignment or subletting or such assignment is permitted by this Lease, Tenant shall remain fully and primarily liable for the obligations of the tenant hereunder, including, without limitation, the obligation to pay Annual Fixed Rent and additional rent as provided under this Lease. Except as otherwise permitted by Permitted Transfers, any subleasetransfer of control of Tenant by means of one or more transfers of stock or partnership interests shall be deemed an assignment for purposes of this Section.
(b) In the event that any sublease or assignment of the Second Floor is permitted under this Lease (other than with respect to Permitted Transfers and the sublease described in subsection (e) below), Tenant shall pay to Landlord as additional rent one half of the amount Tenant receives from any subtenant or assignee as rent, additional rent or other form of compensation or reimbursement in excess of (i) the Annual Fixed Rent applicable to the space so sublet or assigned, additional rent and other monies otherwise due to Landlord pursuant to this Lease (allocable in the case of a sublease to that portion of the Premises being subleased), and (ii) any reasonable expenses incurred and paid by Tenant in connection with such sublease or assignment such as brokerage commissions, fees for legal services and expenses of preparing the Premises for occupancy by such subtenant or assignee and specifically including Tenant's recovery of the unamortized value of the improvements to the second floor made by Tenant based on a ten-year useful life utilizing the so-called "straight line" method of cost recovery.
(c) If this Lease is assigned, or to permit occupancy of if the Premises or any part thereof is sublet or occupied by anyone other than TenantTenant (other than as a result of a Permitted Transfer), voluntarily or by operation of lawLandlord may, except as hereinafter provided; as Additional Rentat any time and from time to time, to reimburse Landlord promptly for reasonable legal collect rent and other expenses incurred charges from the assignee, sublessee 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 the prohibitions contained in this Section 5.5, or the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance by Tenant of the covenants herein contained to be performed by Tenant. The consent by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no one assignment or subletting shall affect not be construed to relieve Tenant from obtaining the continuing primary liability express consent in writing of Tenant (which, following assignment, shall be joint and several with the assignee); no consent Landlord to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed further assignment or subletting is required both as subletting.
(d) Notwithstanding any provision of this Section 5.5 to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants contrary, in the Building. In addition, as to any assignee event that (but not as to any sublesseei) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. is to be sublet, or (ii) all of the Premises after Second Floor of the date of commencement of such subleaseBuilding is to be sublet, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, may elect to terminate this Lease as with respect to either the entire Premises or the entire Second Floor of the date of commencement Building being sublet, as the proposed sublease or assignment; providedcase may be, however, that by giving Tenant shall have the right to rescind any such request 30 days' prior written notice.
(e) As used in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of TenantPermitted Transfers" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.of the following transactions:
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord to Subtenant shall not assign this Lease, to make any sublease, Sublease or to permit occupancy of the Premises further sublet all or any part thereof by anyone other than Tenant, voluntarily or by operation of law, the Subleased Premises except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions and in compliance with all of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of Section 16 of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional RentMaster Sublease, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent Sublandlord (in addition to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord and Master Sublandlord) shall have the option, exercisable by written notice same approval rights with respect to Tenant given within 10 days after receipt of such request, to terminate this Lease assignment and subleasing as of Landlord has under the date of commencement the proposed sublease or assignmentMaster Lease; provided, however, that Tenant (x) fifty percent (50%) of all "bonus rent" in connection with any such assignment or sublease shall be payable to Sublandlord as and when received by Subtenant. Subtenant shall pay all fees and costs payable to Landlord and Master Sublandlord in connection with any proposed assignment, sublease or transfer of the Subleased Premises, together with all of Sublandlord's reasonable out-of-pocket costs relating to Subtenant's request for such consent, regardless of whether such consent is granted, and the effectiveness of any such consent shall be conditioned upon Landlord's and Master Sublandlord's and Sublandlord's receipt of all such fees and costs and (y) in connection with any proposed assignment or subletting by Subtenant, Sublandlord will have the right right, to rescind any such request in the event Landlord elects to so terminate this Lease be exercised by written notice given to Landlord delivered within five twenty (520) days after Subtenant's submission of all necessary materials requesting Sublandlord's consent to such assignment or sublease, to terminate this Sublease with respect to the space that is the subject of such proposed assignment or sublease, effective as of the proposed effective date of such termination notice from Landlord, proposed assignment or sublease and (z) in which no event such termination notice shall will there be more than three (3) occupants (inclusive of no further force or effect; If, Subtenant and any sub-subtenants of Subtenant) of the Subleased Premises at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenanttime.
Appears in 1 contract
Sources: Sub Sublease (Aquantive Inc)
Assignment and Subletting. Not (a) Tenant shall not assign, sublet, mortgage, pledge or encumber this Lease, the Premises, or any interest in the whole or in any portion thereof, directly or indirectly, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In the event of any assignment, sublease, mortgage, pledge or encumbrance, Tenant shall: (i) remain primarily liable for the performance of all terms of this Lease, (ii) pay all reasonable costs incurred by Landlord in connection with such assignment, sublease or mortgage, including without limitation, attorneys’ fees and an administration and processing fee equal to three percent (3%) of the total base rent due and payable by such subtenant or assignee under the terms of said assignment or sublease, and (iii) pay to Landlord fifty percent (50%) of any rental or any fees or charges received by Tenant in excess of the Annual Rental payable to Landlord hereunder as further rental under this Lease. Landlord’s consent to one assignment or sublease will not waive the requirement of its consent to any subsequent assignment or sublease as required herein. Any attempted assignment or sublease by Tenant in violation of the terms and conditions of this Section 23 shall be null and void. Upon receipt by Landlord of an Assignment/Sublease Notice (hereinafter defined), which notice contains the material terms and conditions of such proposed sublease or assignment, Landlord shall have the option, within fifteen (15) days after its receipt of such notice, to terminate this Lease with respect to the portion of the Premises which Tenant proposes to sublet or assign (the “Proposed Space”), whereupon the parties hereto shall have no further rights or liabilities with respect to the Proposed Space except as otherwise expressly set forth herein.
(b) In the event of a proposed assignment of this Lease or subletting of all or a part of the Premises, Tenant shall submit to Landlord, in writing (the “Assignment/Sublease Notice”): (i) the name of the proposed assignee or sublessee, (ii) current financial statements available to Tenant disclosing the financial condition of the proposed assignee or subtenant, (iii) the nature of the business of the proposed assignee or sublessee, and its proposed use of the Premises (any assignment or subletting being subject to restrictions on use contained in this Lease, the violation of which by the proposed assignee or sublessee shall constitute absolute grounds for Landlord’s denial of the requested assignment or subletting, such grounds not being the exclusive grounds for denial under clause (iii)), (iv) the proposed commencement date of the assignment or subletting, together with a copy of the proposed assignment or sublease, and (v) the terms of the proposed sublease or assignment. Within thirty (30) days after its receipt of such notice, Landlord shall either approve or disapprove such proposed assignment or sublease in writing. Tenant shall promptly deliver a copy of the fully executed assignment or sublease to Landlord upon its receipt of same.
(c) Notwithstanding anything in this Lease to the contrary, Tenant further agrees that any assignment or sublease shall be subject to the following additional limitations: (i) in no event may Tenant assign this Lease or sublet all or any portion of the Premises to an existing Tenant of the Building or its subtenant or assignee (unless Landlord consents to such assignment or sublease); (ii) in no event shall the proposed subtenant or assignee be a person or entity with whom Landlord or its agent is negotiating and to or from whom Landlord, or its agent, has given or received any written or oral proposal within the past six (6) months regarding a lease of space in the Building; and (iii) Tenant shall not publicly advertise the rate for which Tenant is willing to sublet the Premises; and all public advertisements of the assignment of the Lease or sublet of the Premises, or any portion thereof, shall be subject to prior written approval by Landlord, such approval not to be unreasonably withheld or delayed. Said public advertisement shall include, but not be limited to, the placement or display of any signs or lettering on the exterior of the Premises or on the glass or any window or door of the Premises or in the interior of the Premises if it is visible from the exterior.
(d) All proposed subleases and assignments shall be on a form of sublease or assignment reasonably acceptable to Landlord, whichever is applicable; and shall contain, inter alia, the following provisions: (i) any such assignment or sublease shall include an assumption by the assignee or subtenant, from and after the effective date of such assignment or sublease, of the performance and observance of the covenants and conditions to be performed and observed on the part of Tenant as contained in this Lease, and (ii) any such sublease or assignment shall specify that this Lease or sublease shall not be further assigned nor the Premises further sublet (except in accordance with the terms of this Lease) and shall specify that the term of such sublease shall not extend beyond one (1) day prior to the expiration of this Lease. The consent by Landlord to any assignment, transfer or subletting to any person or entity shall not be construed as a waiver or release of Tenant from any provision of this Lease, unless expressly agreed to in writing by Landlord (it being understood that Tenant shall remain primarily liable as a principal and not as a guarantor or surety), nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant from any such provision. No consent by Landlord to any such assignment, transfer or subletting in any one instance shall constitute a waiver of the necessity for such consent in a subsequent instance.
(e) For purposes of this Section 23, a transfer, conveyance, grant or pledge, directly or indirectly, in one or more transactions, of an interest in Tenant (whether stock, partnership interest or other form of ownership or control, or the issuance of new interests) by which an aggregate of fifty percent (50%) or more of the beneficial interest in Tenant shall be vested in a party or parties who are not holders of such interest(s) as of the date hereof) shall be deemed an assignment of this Lease; provided, however, that this limitation shall not apply to any corporation, all of the outstanding voting stock of which is listed on a national securities exchange as defined in the Securities Exchange Act of 1934. The merger or consolidation of Tenant into or with any other entity, the sale of all or substantially all of Tenant’s assets, or the dissolution of Tenant shall each be deemed to be an assignment within the meaning of this Section 22.
(f) Notwithstanding any consent by Landlord to an assignment or subletting, Tenant shall remain primarily liable for the performance of all covenants and obligations contained in this Lease. Each approved assignee or subtenant shall also automatically become liable for the obligations of Tenant hereunder. Landlord shall be permitted to enforce the provisions of this Lease directly against Tenant and/or against any assignee or sublessee without proceeding in any way against any other person. Collection or acceptance of Base Rent or Additional Rent from any such assignee, subtenant or occupant shall not constitute a waiver or release of Tenant from the terms of any covenant or obligation contained in this Lease, nor shall such collection or acceptance in any way be construed to relieve Tenant from obtaining the prior written consent of Landlord to assign this Lease, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to such assignment or subletting or any subsequent assignment or subletting.
(subject g) Notwithstanding anything to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1contrary contained herein, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord upon at least thirty (30) days prior written notice to Landlord (the “Affiliate Notice”), but without Landlord’s prior written consent, assign this Lease, or sublet all or a portion of the Premises to a Qualified Tenant Affiliate (hereinafter defined), provided, that the business operations of the proposed assignee or subtenant (which shall be disclosed in the Affiliate Notice) do not conflict with any exclusivity or other limitation that may be imposed upon Landlord, no default by Tenant exists hereunder and such assignment or subletting Qualified Tenant Affiliate uses the Premises for a use permitted pursuant to either the terms of the foregoing clauses Section 7(a), above. A “Qualified Tenant Affiliate” shall mean a corporation or other entity which (i) shall control, be controlled by or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or be under common control with Tenant or which results from a merger with Tenant or which acquires all or substantially all of the business and assets (or stock) of Tenant, (ii) is of a type and quality consistent with the first-class nature of the Building, (iii) has the financial capacity and creditworthiness to undertake and perform the obligations of this Lease or the sublease, (iv) is not a party by whom any suit or action could be defended on the ground of sovereign immunity, and (v) in the case of a merger or acquisition, has a net worth and general creditworthiness immediately after the transfer at least equal to the net worth and general creditworthiness of Tenant as of the date of this Lease. In the event of any assignment to a Qualified Tenant Affiliate, Tenant shall remain fully liable to perform the obligations of Tenant under this Lease, such obligations to be joint and several with the obligations of the Qualified Tenant Affiliate as tenant under this Lease, and Tenant shall execute such guaranty or other agreement as Landlord shall reasonably request to confirm such liability.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent 11.1 Subtenant shall not voluntarily or by operation of Landlord to law assign this Lease, to make Sublease or any sublease, or to permit occupancy of interest therein and shall not sublet the Premises or any part thereof by anyone other than Tenantthereof, voluntarily or by operation any right or privilege appurtenant thereto, without first obtaining the written consent of lawSublandlord, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for which consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is . Determining whether or not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's to consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease assignment or assignment; providedsubletting, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant isSublandlord may consider among other factors:
(i) whether the proposed sublessee or assignee has a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than Subtenant;
(ii) whether the net worth of Tenant as proposed use of the date hereofPremises by the proposed sublessee or assignee is consistent with Paragraph 2.7;
(iii) the experience and business reputation of the proposed sublessee or assignee; and
(iv) whether Sublandlord's consent will result in a breach of any other lease or agreement to which Sublandlord is a party affecting the Property or Premises.
11.2 Any attempted assignment or subletting, provided that Tenant provides Landlord at least thirty (30) days prior notice without Sublandlord's consent shall be null and void and of such no effect. No permitted assignment or subletting pursuant of Subtenant's interest in this Sublease, shall relieve Subtenant of its obligations to either pay the rent and to perform all the other obligations to be performed by Subtenant hereunder. The acceptance of rent by Sublandlord from any other person shall not be deemed to be a waiver by Sublandlord of any provision of this Sublease or to be a consent to any subletting or assignment. Consent to one sublease or assignment shall not be deemed to constitute consent to any subsequent attempted subletting or assignment.
11.3 Within ten (10) days following the date received by Subtenant from any assignee or sublessee, Subtenant shall pay to Sublandlord as additional rent, one hundred percent (100%) of the foregoing clauses amount by which the rent payable by such assignee or sublessee to Subtenant exceeds the rent payable by Subtenant to Sublandlord under this Sublease until the rent paid by Subtenant to Sublandlord equals the amount paid by Sublandlord to Master Landlord under the Master Lease and thereafter, fifty percent (i50%) of the amount by which the rent payable by such assignee or (ii)sublessee to Subtenant throughout the term exceeds the rent paid by Subtenant to Sublandlord under this Sublease. As used hereinBy way of example, if during a year of the term the annual rent under the Master Lease is $12 per square foot, the rent under the Sublease is $10 per square foot, and the rent under such subsublease is $14 per square foot, of the $14 per square foot paid to Subtenant by its subsublessee, $13 per square foot will be paid by Subtenant to Sublandlord hereunder. If Subtenant receives a lump sum payment in connection with an assignment, such amount shall be allocated between Subtenant and Sublandlord, in the same manner taking into account the total rents payable during the remaining terms of the Master Lease and Sublease. The foregoing is a freely negotiated arrangement between Subtenant and Sublandlord respecting the allocation of appreciated rents. This covenant shall survive the expiration of the term "Affiliate of Tenant" this Sublease. Notwithstanding the foregoing, Subtenant shall mean and refer not be obligated to pay Sublandlord any portion of such appreciated rentals until Subtenant has recovered any costs it has reasonably incurred in connection with the subletting of the Premises to any entity controlled by, controlling third party broker or under common control with Tenantfor improvements to the Premises. Any such costs to be deducted from appreciated rents shall be submitted to Sublandlord and shall be subject to Sublandlord's reasonable approval.
Appears in 1 contract
Sources: Sublease (Tomahawk Corp)
Assignment and Subletting. Not without the prior written consent (a) Any assignment of Landlord to assign this Lease, to make any sublease, Sublease or to permit occupancy sublease of all or a portion of the Sublease Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (shall be subject to the provisions receipt of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's and Sublandlord's consent, which consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant Sublandlord shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor shall otherwise be subject to the greater terms of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignmentMaster Lease; provided, however, that Tenant Sublandlord shall not have the right to rescind any such request of recapture provided in the event Landlord elects to so terminate this Lease Master Lease. Any assignment or sublease by Subtenant without Sublandlord's prior written consent shall be void. Subtenant shall advise Sublandlord by notice given of (i) Subtenant's intent to assign this Sublease or sublease all or a portion of the Sublease Premises, (ii) the name of the proposed assignee or sublessee and evidence reasonably satisfactory to Sublandlord that such proposed assignee or sublessee is comparable in reputation, stature and financial condition to tenants then leasing comparable space in the Building, and (iii) the terms of the proposed assignment or sublease. Sublandlord shall, within fifteen (15) days of receipt of such notice, and any additional information requested by Landlord concerning the proposed assignee's financial responsibility, elect one of the following:
(i) Consent to such proposed assignment;
(ii) Refuse such consent, which refusal shall be on reasonable grounds.
(b) In the event that Subtenant requests Sublandlord's consent to an assignment or a sublease under the provisions of this Section 21, Subtenant shall pay Sublandlord's reasonable processing costs and reasonable attorneys' fees incurred in giving such consent, including any amounts required to be paid to Landlord in connection with same. Notwithstanding any permitted assignment, Subtenant shall at all times remain directly, primarily and fully responsible and liable for all payments owed by Subtenant under the Sublease and for compliance with all obligations under the terms, provisions and covenants of the Sublease. If for any proposed assignment, Subtenant receives Rent or other consideration, either initially or over the term of the assignment, in excess of the Rent required by this Sublease, after a deduction for the following: (i) any brokerage commission paid by Subtenant in connection therewith and (ii) any reasonable attorneys' fees in connection with preparing and negotiating an assignment document ("Profit"), Subtenant shall pay to Sublandlord as additional Rent, fifty percent (50%) of such Profit or other consideration received by Subtenant within five (5) days after the date of such termination notice from Landlordits receipt by Subtenant or, in which the event such termination notice the assignee makes payment directly to Sublandlord, Sublandlord shall be refund fifty percent (50%) of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
Profit to Subtenant after deducting (i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantabove.
Appears in 1 contract
Sources: Sublease Agreement (Planetout Inc)
Assignment and Subletting. Not (a) Tenant shall not mortgage, pledge or encumber this Lease without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed.
(b) Tenant shall have the right to assign this Lease or sublet all or any portion of the Premises throughout the Term, subject to Landlord's prior written consent of Landlord to assign this Leaseand approval, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheld, provided conditioned, or delayed, provided, that Tenant is not then in default under remains fully liable for the performance of all terms and conditions of this Lease including but not limited to the payment of Base Rent and Additional Rent and that the assignee or subtenant agrees to be bound by all terms, conditions, and provisions of this Lease. If Tenant wants to assign, sublet or otherwise transfer all or part of the Premises or this Lease, then Tenant shall give Landlord written notice ("Tenant's Request Notice") of the identity of the proposed assignee or subtenant and its business, all terms of the proposed assignment or subletting, the commencement date of the proposed assignment or subletting (the "Proposed Sublease Commencement Date"), the area proposed to be assigned or sublet (the "Proposed Sublet Space") and such other information as Landlord may reasonably request, together with a processing fee of One Thousand Dollars ($1000.00) payable to Landlord, which shall be earned by Landlord regardless of whether Landlord's written consent and approval is given. Tenant shall also transmit therewith the most recent financial statement or other evidence of financial responsibility of such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all a certification executed by Tenant and such proposed assignee or subtenant stating whether any premium or other payments then payable hereunder, or the then fair market rent consideration is being paid for the Premisesproposed assignment or sublease. If Tenant requests Any sublease, assignment or other transfer shall be effective on forms supplied or approved by Landlord's consent . In addition to assign this Lease or to sublet any portion of the Premises such that processing fee described above, Tenant shall not occupy at least 40,000 r.s.fbe solely responsible for the payment of reasonable attorneys fees incurred by Landlord in preparing and/or reviewing documents implementing any such assignment or subletting. of the Premises after the date of commencement of such sublease, Tenant assigns to Landlord shall have the option, exercisable by written notice any sum due to Tenant given within 10 days after receipt from any assignee, subtenant or occupancy of such requestTenant as security for Tenant's performance of its obligations pursuant to this Lease, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right license to rescind any collect such request in rents provided prior to the event Landlord elects occurrence of an Event of Default. Following an Event of Default, Tenant authorizes each such assignee, subtenant or occupant to so terminate this Lease by notice given pay such sum directly to Landlord within five (5) days after the date if such assignee, subtenant or occupant receives written notice from Landlord specifying that such rent shall be paid directly to Landlord. Landlord's collection of such termination notice from Landlordrent shall not be construed as an acceptance of such assignee, subtenant or occupant as a tenant nor a waiver of any default hereunder by Tenant. Notwithstanding anything in which event such termination notice shall be this Paragraph 12 to the contrary, provided no Event of no further force or effect; If, at any time during the Term of Default exists under this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in would exist but for the identity pendency of any of the persons then having power to participate in the election or appointment of the directorscure periods provided for under Paragraph 17, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by may, without Landlord's consent, but after providing written notice to Tenant given within 90 days thereafter ifLandlord, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet all or any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant Related Entity (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or in the event of an assignment, such Related Entity assumes in full all of Tenant's obligations under this Lease; (ii)) Landlord is provided with a counterpart of the fully executed agreement of assignment or sublease, which shall be in a form reasonably satisfactory to Landlord; (iii) to the extent Tenant remains in existence Tenant remains liable under the terms of this Lease; (iv) such Related Entity is not a governmental entity or agency; (v) such Related Entity's use requirement does not materially differ from the Permitted Use described in Paragraph 5 hereof; and (vi) such Related Entity does not require additional services other than those agreed to be provided by Landlord under the terms of this Lease. As used herein"Related Entity" shall be defined as (i)any parent company, the term "Affiliate subsidiary, or affiliate of Tenant" shall mean and refer to any entity , which controls, is controlled by, controlling or is under common control with Tenant, and/or (ii) any entity into which Tenant shall be merged or consolidated, or which purchases substantially all of the assets of Tenant and assumes the liabilities of Tenant under this Lease and continues in the same business as that of Tenant.
Appears in 1 contract
Assignment and Subletting. Not Tenant may not, without the prior written consent of the Landlord, which consent may be unreasonably withheld by Landlord to assign in its sole discretion, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease, to make or any subleaseinterest therein, or to permit occupancy of nor sublet the Premises or any part thereof thereof, or permit the use of the Premises by anyone any party other than Tenantthe Tenant and its employees. Consent by Landlord to one assignment or sublease shall not destroy or waive this provision, voluntarily and all other assignments and subleases shall like wise be made only upon the prior written consent of the Landlord. In the event of a proposed sublease or by operation assignment, Landlord may, in lieu of lawconsenting or denying such assignment or sublease, except cancel this Lease as hereinafter provided; as Additional Rentto the space proposed to be assigned or sublet. If such cancellation is only for part of the Premises, then equitable adjustments shall be made to reimburse Landlord promptly for reasonable legal the Rent and other expenses incurred by Landlord in connection with any request sums payable by Tenant for consent pursuant to this Lease. If Landlord consents to an assignment or subletting sublet (subject I) such obligations or liabilities under this Lease and (II) any extensions, renewals, first refusal rights or options hereunder will automatically be of no force or effect for the assignee or sublessee or Tenant. If Tenant is any entity, any change to the provisions structure of Section 5.1.12 hereof); no assignment such entity or subletting shall affect the continuing primary liability any disposition(s) of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing interests therein by sale, assignment, operation of law or otherwise, or any change in a specific instance shall operate the power to vote the interests therein, will be treated as a waiver in any subsequent instance. prohibited assignment of this Lease requiring Tenant to obtain Landlord's consent to prior written consent. In the event any proposed assignment or subletting subleasing is required both as consented to by Landlord, Tenant shall pay to Landlord any rent or other consideration received by Tenant in excess of the amount of Rent and other sums which the Tenant is paying or is obligated to pay during the term of the assignment or sublease. Sublessee or assignees shall become and shall expressly agree in writing to become liable to the terms and conditions thereof and as to the consistency Landlord for all obligations of the proposed assigneeTenant, without relieving the Tenant's liability, which liability shall remain unabated during the term of this Lease Agreement and any renewals thereof. Any attempt by Tenant to sublease or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) assign its interest hereunder without Landlord's consent shall be required as to the reasonable creditworthiness null and void and of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Leaseno effect. Landlord's consent to any Furthermore such attempted assignment or subletting by Tenant sublease shall not be unreasonably withheld, provided that Tenant is not then in constitute a default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Lease Agreement (International Assets Holding Corp)
Assignment and Subletting. Not Subtenant shall have the following rights and obligations with respect to assignment of this Sublease or subletting of the Sublet Premises.
(i) Notwithstanding anything contained herein to the contrary, (a) Subtenant shall have the right to assign the Sublease or sublet all or any portion of the Sublet Premises (i) to any parent, subsidiary or Affiliate (defined herein as defined in the Redacted Lease) of Subtenant or to (ii) to any entity succeeding to the interest of Subtenant by reason of a merger, consolidation or restructuring of Subtenant or the sale of all or substantially all of Subtenant’s assets or beneficial interests in Subtenant without first obtaining Sublandlord’s (and Landlord’s) prior written consent and (b) any change of Control (as defined in the Redacted Lease) of Subtenant or Parent, subsidiary or Affiliate thereof which would otherwise be deemed an assignment under the provisions of this Sublease (or the Lease) shall not be deemed an assignment or other transaction requiring the consent of Sublandlord (or Landlord) under the provisions of this Sublease (or the Lease), provided that, to the extent permitted by applicable securities laws and other applicable legal requirements, prior to any such transfer or other transaction Subtenant shall provide in each instance written notice thereof to Sublandlord at least ten (10) days prior to the effective date of any such transaction. Sublandlord shall hold the content of such notice in confidence and shall advise Landlord of the confidential nature thereof when forwarding same to Landlord for its review under the Lease, provided that Sublandlord may disclose such information to such of its employees and financial advisors (advising them to treat the information as confidential as may be reasonably necessary in evaluating same). If the transaction is between one or more public companies or the transaction is subject to a confidentiality agreement between them, then Subtenant shall not be required to identify its counterparty until the date which is not later than five (5) business days after the effective date of the transaction, provided that, to the extent permitted by applicable securities laws and other applicable legal requirements, it shall provide such other non-identifying information as required hereunder. With respect to any of the transactions described in clause (a) (ii) and (b) above, (A) the successor to Tenant shall have a tangible net worth computed in accordance with generally accepted accounting principles consistently applied at least equal to the tangible net worth of Subtenant immediately prior to such merger, consolidation or transfer and (B) proof reasonably satisfactory to Sublandlord (and Landlord) of such tangible net worth, shall have been delivered to Landlord at least ten (10) days prior to the effective date of any such transaction (or such later date permitted above for delivery of notice if required by securities or other legal requirements); and provided that, with respect to transactions described above: (1) the successor to Subtenant agrees directly with Sublandlord, by written instrument in form reasonably satisfactory to Sublandlord, to assume and be bound by all the obligations of Subtenant hereunder, (2) in no event shall Subtenant be released from its obligations under this Sublease, and Subtenant and the successor to Subtenant shall be jointly and severally liable for the Subtenant’s obligations under this Sublease, (3) any such transfer or transaction is for a legitimate, regular business purpose of Subtenant other than for the sole purpose of a transfer of Subtenant’s transfer of its interest in the Sublease and (4) Subtenant shall reimburse Sublandlord and Landlord on demand for any reasonable costs including, without limitation, reasonable legal costs, incurred by either of them in connection with such transaction. The public trading of transferrable shares of Subtenant on an organized stock exchange or “over the counter” shall not be deemed an assignment of this Sublease or other transaction requiring the consent of Sublandlord. In the case of any assignment, subletting or other transaction proposed to be entered into under circumstances described in subclauses (a) and (b) above in this Section 9(i), Subtenant shall not exercise any rights under Section14.8 of the Lease to collect Transaction Profits as defined therein nor exercise the right to terminate the Sublease pursuant to Section 14.3 of the Lease. In the case of any assignment or subletting proposed to be entered into under circumstances not described in this clause (i), the following provision set forth in Section 9(ii) through 9(iv) shall apply.
(ii) Subtenant shall have the right to assign the Lease or sublet all or any portion of the Sublet Premises subject to all of the terms of the Lease (excluding, however, as between Sublandlord and Subtenant, Sections 14.2, 14.3 and 14.8 thereof), except as set forth in Section 27 of this Sublease, subject to, in each instance the requirement of obtaining Landlord’s consent thereunder, and subject also to the prior written consent of Sublandlord, which consent shall not be unreasonably withheld, conditioned or delayed. Subtenant shall not otherwise assign or mortgage the Sublease or its interest therein.
(iii) With respect to any assignment of this Sublease by Subtenant or any sublease of all or a portion of the Sublet Premises to an independent third party by Subtenant (exclusive of the transaction contemplated under Section 9(i) above), Subtenant and Sublandlord shall divide evenly between themselves any “Transaction Profits” as defined and described in Section 14.8 of the Lease (but Subtenant shall in no event be responsible for any further profit split with any other parties, including Landlord).
(iv) No subtenant of Subtenant shall have the right to further transfer its interest in this Sublease or the Sublet Premises without the prior written consent of Sublandlord and Landlord to assign this Lease, to make (without the foregoing implying any sublease, or to permit occupancy standard of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection reasonableness with any request by Tenant for consent to assignment or subletting (subject respect to the provisions giving or withholding of Section 5.1.12 hereofsuch consent); . Subtenant covenants and agrees that no assignment security agreement, whether by way of a conditional b▇▇▇ of sale, chattel mortgage or subletting shall affect the continuing primary liability instrument of Tenant (which, following assignmentsimilar import, shall be joint and several with placed on any improvement in the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting Sublet Premises which is required both as affixed to the terms and conditions thereof and as to the consistency real property of the proposed assignee's or subtenant's business with other uses and tenants which they are a part, not shall Subtenant’s interest in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall this Sublease be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association mortgaged or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantencumbered.
Appears in 1 contract
Assignment and Subletting. Not without Subtenant shall not mortgage, pledge, hypothecate, encumber or permit any lien to attach to this Sublease or Subtenant's interest in the prior written consent of Landlord to Sublease Premises. Subtenant shall not assign this Lease, to make Sublease or sublet or license all or any subleaseportion of the Sublease Premises, or to permit the occupancy or use of the Sublease Premises by any other person or any part thereof by anyone entity other than Tenantits employees and contractors during the term of their employment or contracts with Subtenant (collectively referred to as "Transfers"), voluntarily whether voluntarily, involuntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several compliance with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. LandlordMaster Lease and with Sublandlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionprior written consent, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheld. Sublandlord's consent shall not be required for a Transfer to an Affiliate, as provided that Tenant in section 15(d) of the Master Lease. Whether or not Sublandlord consents to a proposed Transfer, Subtenant shall pay Sublandlord's fees and expenses in reviewing and responding to such proposal, including, without limitation, reasonable fees of Sublandlord's attorneys, accountants, architects and consultants, within fifteen (15) days after written notice from Sublandlord. If Sublandlord consents to a Transfer, Subtenant shall pay to Sublandlord fifty percent (50%) of any "Transfer Premium" received by Subtenant in respect of such Transfer. "Transfer Premium" shall mean all rent or other consideration payable by the transferee under such Transfer which is not then in default excess of the Base Rent payable by Subtenant under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed RentSublease, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Sublease Premises that is applicable to such that Tenant Transfer, after deducting Subtenant's reasonable expenses for (a) brokerage commissions, marketing costs and legal expenses for such Transfer, and (b) Alterations to the Sublease Premises required in connection with the Transfer. "Transfer Premium" shall also include, but not be limited to, key money, bonus money, payment for assets or services in excess of the fair market value thereof, or other consideration paid by the transferee to Subtenant in connection with such Transfer. Consent to any Transfer shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's constitute consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii)other Transfer. As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant10.
Appears in 1 contract
Sources: Sublease Agreement (Deltagen Inc)
Assignment and Subletting. Not (a) Tenant shall not, without the prior written consent of Landlord Landlord, such consent not to be unreasonably withheld, assign this Lease, to make Lease or any sublease, interest herein or to permit occupancy of sublet the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any thereof. Any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's acts without such consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premisesvoid. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power desires to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet all or any part of the Premises, Tenant shall give notice to Landlord of such desire, including the name, address and contact party for the proposed assignee or subtenant, the effective date of the proposed assignment or sublease (including the proposed occupancy date by the proposed assignee or sublessee), and in the instance of a proposed sublease, the square footage to be subleased, a floor plan professionally drawn to scale depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall in any and all events expire by its terms prior to the scheduled expiration of this Lease, and immediately upon the sooner termination hereof). Landlord may, at its option, exercisable by notice given to Tenant within forty-five (45) days next following Landlord’s receipt of Tenant’s notice, elect to recapture the Premises if Tenant is proposing to sublet or terminate this Lease in the event of an assignment. Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder for the remainder of the then current Lease Term. Landlord shall be entitled to a $250 fee for consenting to any sublet or assignment.
(b) The parties agree that if shall not be unreasonable to Landlord to withhold its consent to any assignment or sublease if: (i) the proposed assignee or sublessee shall have a net worth which is not acceptable to Landlord in Landlord’s reasonable discretion; (ii) the proposed assignee or sublessee shall have no reliable credit history or an unfavorable credit history, or other reasonable evidence exists that the proposed assignee or sublessee will experience difficulty in satisfying its financial or other obligations under this Lease; (iii) the proposed assignee of sublessee, in Landlord’s reasonable opinion, is not reputable and of good character; (iv) the portion of the Premises requested to be subleased renders the balance of the Premises unleasable as a separate area; (v) Tenant is proposing a sublease at a rental or subrental rate which is less than the then fair market rental rate for the portion of the Premises being subleased or assigned, or Tenant is proposing to assign or sublease to an existing tenant of the Building or another property owned by Landlord or by its partners, or to another prospect with whom Landlord or its partners, or their affiliates are then negotiating; (vi) the proposed assignee or sublessee will cause Landlord’s existing parking facilities to be reasonably inadequate, or in violation of code requirements, or require Landlord to increase the parking area or the number of parking spaces to meet code requirements, or the nature of such party’s business shall reasonably require more than four (4) parking spaces per 1,000 rentable square feet of floor space, or (vii) the nature of such party’s proposed business operation would or might reasonably permit or require the use of the Premises in a manner inconsistent with the “Permitted Use” specified herein, would or might reasonably otherwise be in conflict with express provisions of this Lease, would or might reasonably violate the terms of any other lease for the Building, or would, in Landlord’s reasonable judgment, otherwise be incompatible with other tenancies in the Building.
(c) Notwithstanding anything to the contrary in this Article 9(a) and 9(b), Tenant may, after notice to, but without the consent of Landlord's consent , assign this Lease to an affiliate (i) any successor i.e., a corporation 50% or more of whose capital stock is owned by the same stockholders owning 50% or more of Tenant’s capital stock), parent or subsidiary corporation of Tenant resulting from an acquisition or to a corporation to which it sells or assigns all of all or substantially all of Tenant's its assets or a merger stock or consolidation with which it may be consolidated or merged (“Affiliate”), provided such purchasing, consolidated, merged, affiliated or subsidiary corporation shall, in writing, assume and agree to perform all of the obligations of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose under this Lease, shall have a net worth is at least equal to or greater than the net worth of Tenant as of the date hereof$10,000,000, provided that Tenant provides Landlord at least thirty (30) days prior notice and it shall deliver such assumption with a copy of such assignment to Landlord within ten (10) days thereafter, and provided further that Tenant shall not be released or subletting pursuant to either discharged from any liability under this Lease by reason of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsuch assignment.
Appears in 1 contract
Sources: Lease (Emtec Inc/Nj)
Assignment and Subletting. Not Tenant shall not have the right to sublet, assign or otherwise transfer or encumber this Lease, or any interest therein, without the prior written consent of Landlord. Any attempted assignment, subletting, transfer or encumbrance by Tenant in violation of the terms and covenants of this paragraph shall be void. Any assignee, sublessee or transferee of Tenant's interest in this Lease (all such assignees, sublesses and transferees being hereinafter referred to as "Transferees") by assuming Tenant's obligations hereunder, shall assume liability to Landlord for all amounts paid to assign persons other than Landlord by such Transferees to which Landlord is entitled or is otherwise in contravention of this Paragraph 15. No assignment, subletting or other transfer, whether or not consented to by Landlord or permitted hereunder, shall relieve Tenant of its liability under this Lease, to make any sublease, or to permit occupancy . If an Event of Default occurs while the Premises or any part thereof are assigned or sublet, then landlord, in addition to any other remedies herein provided or provided by anyone other than Tenant, voluntarily or by operation of law, except may collect directly from such Transferee all rents payable to the Tenant and apply such rents against any sums due to Landlord hereunder. No such collection shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder. If Landlord consents to any subletting or assignment by Tenant as hereinafter provided; hereinabove provided and any category of rent subsequently received by Tenant under any such sublease is in excess of the same category of rent payable under this Lease, or any additional consideration is paid to Tenant by the assignee under any such assignment, then Landlord may, at its option, declare such excess rents under any sublease or such additional consideration for any assignment to be due and payable by Tenant to Landlord as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request additional rent hereunder. The following shall additionally constitute an assignment of this Lease by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term purposes of this Lease, Tenant is:
Paragraph 15: (i) if Tenant is a corporation corporation, any merger, consolidation, dissolution or a trust (whether liquidation, or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having ownership or power to participate in the election vote of thirty percent (30%) or appointment of the directors, trustees or other persons exercising like functions and managing the affairs more of Tenant's outstanding voting stock; or
(ii) if Tenant is a partnership partnership, joint venture or association other entity, any liquidation, dissolution or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity transfer of ownership of any interests totaling thirty percent (30%) or more of the persons who then are members of total interests in such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantentity.
Appears in 1 contract
Assignment and Subletting. Not Tenant, and/or any Guarantor of Tenant, shall not without the prior written consent of Landlord, which consent may be withheld or conditioned by Landlord to assign this Leasein its sole discretion, to make any subleaseeither voluntarily, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rentassign, to reimburse Landlord promptly for reasonable legal 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 any other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting person (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability employees, agents, servants and invitees of Tenant (whichexcepted) to occupy or use the said Premises, following assignment, shall be joint and several with the assignee); no consent to or any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Buildingportion thereof. In additiondetermining whether (or not) to grant its consent, Landlord shall have the right to request from any potential assignee or subtenant such financial and operational information as Landlord shall determine in order to reasonably satisfy itself that a potential assignee or subtenant and guarantor(s) have suitable experience and financial strength. If Tenant, and/or any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness Guarantor of the proposed assignee in view of market conditions then prevailing for leases Tenant, having terms and conditions comparable to this Lease. first obtained Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereundersublease, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease if Tenant, as debtor or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such subleasedebtor-in-possession, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there trustee in bankruptcy for Tenant pursuing Bankruptcy Code, shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet the Premises, or any portion part thereof, at a rental or for other consideration in excess of the Rent or pro rata portion thereof due and payable by Tenant, and/or any Guarantor if Tenant, under this Lease, then Tenant, and/or any Guarantor of Tenant, shall pay to Landlord as additional rent 100% of any such rent or other consideration immediately upon receipt under any such assignments or, in the case of a sublease, Tenant, and/or any Guarantor of Tenant, shall provide Landlord with a copy of the Sublease Agreement and on the first day of each month during the term of any sublease, 100% of all rent and other consideration due from the sub tenant for such month then payable to Landlord pursuant to the provisions of this Lease for said month; provided, however Landlord shall not be responsible for any deficiency if Tenant, and/or any Guarantor of Tenant, shall assign this Lease or sublet the Premises without Landlord's or any part thereof any rental less than the Base Annual Rent provided for herein. Consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be consent to (i) any successor of Tenant resulting from an acquisition of all subsequent assignment, subletting, occupation or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) use by another person. Consent to any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either shall in no way relieve Tenant or any Guarantor of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of the foregoing clauses (i) Landlord, constitute a default under the terms of this Lease. In the event that Landlord shall consent to a sublease or (ii). As used hereinassignment hereunder, the term "Affiliate Tenant, and/or any Guarantor of Tenant" , shall mean and refer pay Landlord a fee of One Thousand Dollars ($1,000.00) to any entity controlled by, controlling or under common control cover costs incurred by Landlord in connection with Tenantthe processing of documents necessary to giving of such consent.
Appears in 1 contract
Sources: Office Lease
Assignment and Subletting. Not This Lease shall not be assigned, ------------------------- mortgaged, pledged, encumbered or in any other manner transferred by Tenant, voluntarily or involuntarily, by operation of law or otherwise, nor shall the Leased Premises or any part thereof be sublet, licensed, granted to a concessionaire or used or occupied by anyone other than Tenant without first obtaining the prior written consent of Landlord Lessor. A change in the control of Tenant, if its stock is not then publicly held and traded, including, without limitation, a subsidiary of a publicly held company, shall be deemed to be an assignment for all purposes of this Lease; provided, however that an assignment to a wholly owned subsidiary of Tenant or to its parent corporation for the same purpose as provided for in Article 3 of the Lease shall not require the consent of Landlord. If at any time during the term of this Lease, Tenant shall request Lessor's consent to assign this Lease, or to make sublet all or substantially all of the Leased Premises, Tenant shall include with such requests the name and business experience of the proposed transferee, assignee or sublessee, complete and current financial statements of said transferee, assignee or sublessee, and the rent and other terms of the proposed assignment, transfer or subletting. In the event that Lessor consents to said subletting or assignment, any subleaseamounts received by Tenant (other than the reasonable value paid to Tenant in repayment for trade fixtures and inventory and other personal property of Tenant) above the amounts payable by Tenant to Lessor hereunder shall be deemed, "real estate profit" and shall be paid to Lessor. If Lessor permits any such assignment, change or subletting, Tenant agrees to pay Lessor's legal fees in connection therewith. IN ANY EVENT, LESSOR SHALL HAVE THE RIGHT IN LESSOR'S SOLE DISCRETION TO WITHHOLD CONSENT TO AN ASSIGNMENT OF THIS LEASE OR TO A SUBLETTING OF THE LEASED PREMISES. If Tenant shall any time during the term of this Lease sublet all or any part of the Leased Premises or assign this Lease, Tenant shall nevertheless remain fully liable under all of the terms, covenants, and conditions of this Lease. If this Lease is assigned, or to permit occupancy of if the Leased Premises or any part thereof are subleased or occupied by anyone anybody other than Tenant, voluntarily Lessor may collect from the assignee, sublessee or by operation of law, except as hereinafter provided; as Additional Rent, occupant any rent or other charges payable to reimburse Landlord promptly for reasonable legal Tenant under this Lease and apply the amount collected to the rent and other expenses incurred charges herein reserved, but such collection by Landlord Lessor shall not be deemed in connection with any request by Tenant for consent to assignment acceptance of the assignee, sublessee or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability occupant as a tenant nor a release of Tenant (which, following assignment, shall be joint and several with from the assignee); no consent to any performance of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceTenant under this Lease. LandlordNotwithstanding Lessor's consent to any proposed assignment assignment, subletting, occupation or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assigneeuse by another person, any subsequent assignment, subletting, occupation or use by another person shall require Lessor's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by prior written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantconsent.
Appears in 1 contract
Assignment and Subletting. Not Tenant shall not, without the prior written consent of Landlord, which may be withheld at Landlord's sole discretion, voluntarily or involuntarily assign or hypothecate this Lease or any interest herein or sublet the Premises or any part thereof. For the purposes of this Lease, a management or similar agreement shall be considered to be an assignment of this Lease by Tenant. Any of the foregoing acts without such consent shall be void but shall, at the option of Landlord in its sole discretion, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Lease. Without limiting the foregoing, this Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law without the prior written consent of Landlord to assign this Leasewhich may be withheld at Landlord's sole discretion. Notwithstanding the foregoing, to make any sublease, or to permit occupancy of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. may without Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet the Premises or any portion thereof to a Successor (as such term is defined below), to a wholly-owned subsidiary of Tenant or any Guarantor, provided that such Successor, subsidiary or Guarantor fully assumes the obligations of Tenant under this Lease, Tenant remains fully liable under this Lease, any Guarantor remains fully liable with respect to its guaranty of this Lease, the use of the Premises remains unchanged, and no such assignment or sublease shall be valid and no such subsidiary, Successor or Guarantor shall take possession of the Premises until an executed counterpart of such assignment or sublease has been delivered to Landlord. Anything contained in this Lease to the contrary notwithstanding, Tenant shall not sublet the Premises on any basis such that the rental to be paid by the sublessee thereunder would be based, in whole or in part, on either the income or profits derived by the business activities of the sublessee, or any other formula, such that any portion of the Premises without Landlord's consent sublease rental received by Landlord would fail to (iqualify as "rents from real property" within the meaning of Section 856(d) of the U.S. Internal Revenue Code, or any similar or successor provision thereto.
22.1 For the purpose of this Lease, the transfer, assignment, sale, hypothecation or other disposition of any partnership, stock or other ownership interest in Tenant resulting from an acquisition of all or substantially all of Tenant's assets or in any Guarantor which results in a merger or consolidation of Tenant and (ii) any Affiliate of Tenant change in the Person (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord to assign (a) Sub-Subtenant shall not assign, encumber or in any way transfer this LeaseSub-Sublease, to make any sublease, or to permit occupancy of the Premises nor further sublet all or any part thereof by anyone other than Tenantof the Subleased Premises, whether voluntarily, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment nor permit the use or subletting (subject to the provisions occupancy of Section 5.1.12 hereof); no assignment all or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any part of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's Subleased Premises by anyone other than the Subtenant (collectively, “Transfer”), without Sub-Sublandlord’s consent (not to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease delayed or conditioned). Subject to Prime Landlord and that such assignee or subtenant pays therefor the greater of the Fixed RentOverlandlord’s consent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant Sub-Subtenant shall have the right to rescind permit up to twenty percent (20%) of the rentable area of the Subleased Premises to be occupied, or used for desk space, mailing privileges, or otherwise by any person or entity which has a business relationship with Subtenant.
(b) If Sub-Subtenant shall sublease the Subleased Premises or assign this Sub-Sublease to anyone for rents, additional charges related to the value of the Sub-Sublease, or other consideration which for any period shall exceed the Rent payable under this Sub-Sublease for the same period, Sub-Subtenant shall pay to Sub-Sublandlord, as Additional Charges hereunder, fifty percent (50%) of any such request rents and additional charges (net of any expenses of Sub-Subtenant reasonably related to making the Subleased Premises available for the sublessee or the assignee such as brokerage fees, reasonable attorneys’ fees, work improvements, and improvement allowances) which is in excess of the event Rent accruing during the Sub-Sublease term (the “Transfer Premium”), recognizing that any sums payable by Sub-Subtenant to Sub-Sublandlord, Overlandlord or Prime Landlord elects to so terminate shall also be subtracted from the Transfer Premium. The sums payable under this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice Section 20 shall be of no further force paid to Sub-Sublandlord as Additional Charges as and when payable by the subtenant or effect; If, at any time during assignee to Sub-Subtenant. It is expressly recognized and agreed that the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) terms and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.120 shall not be applicable in connection with a Permitted Transfer (defined below) or to a sale of stock described in the last sentence of Section 20 below.
(c) So long as Sub-Subtenant is not entering into the Permitted Transfer for the purpose of avoiding or otherwise circumventing the remaining terms of this Section, Tenant Sub-Subtenant may assign this Lease (i) license or sublet otherwise permit any affiliate or subsidiary of Sub-Subtenant to occupy a portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant Subleased Premises; and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to assign its entire interest under this Sub-Sublease or greater than the net worth of Tenant as sublease all or a portion of the date hereofSubleased Premises, without the consent of Sub-Sublandlord, to (A) an affiliate, subsidiary, or parent of Sub-Subtenant, or a corporation, partnership or other legal entity controlled by Sub-Subtenant (collectively, an “Affiliated Party”) or (B) a successor to Sub-Subtenant by asset acquisition, capital stock purchase, merger, consolidation or reorganization, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either all of the foregoing clauses following conditions are satisfied: (i1) or Sub-Subtenant is not in default under this Sub-Sublease beyond the expiration of any applicable cure period; (ii2). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Sources: Sub Sublease (Cytrx Corp)
Assignment and Subletting. Not (A) Tenant shall not assign, transfer, mortgage, or otherwise encumber this Lease or sublet or rent (or permit occupancy or use by others of) the Premises, or any part thereof, without obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, nor shall any assignment or transfer of this Lease or the right of occupancy hereunder be effectuated by operation of law or otherwise without the prior written consent of Landlord. Tenant shall give Landlord written notice of Tenant’s desire to assign, sublet or mortgage the Premises, and Tenant shall pay Landlord the sum of Three Hundred Dollars ($300.00) to process each such request. Within thirty (30) days following such request, Landlord shall either consent to such request on such terms and conditions as Landlord may require, or reject such request. In the event Tenant desires to sublet or assign this Leaseall or a portion of the Premises for the balance of the Term, Landlord shall have the option to make any subleaseterminate the Lease as to that portion of the Premises, effective as of the date of Tenant’s intention to sublet or assign or on a date to be agreed upon by Landlord and Tenant, or to permit occupancy consent to such subletting or assignment and require that Tenant pay Landlord as additional rent fifty percent (50%) of the Premises or any part thereof by anyone other than Tenant, voluntarily or by operation difference between the sum of law, except as hereinafter provided; as the Base Rent and Additional Rent, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request Rent payable by Tenant for consent as to the relevant space, and the rent, including additional rent where applicable, charged by Tenant to such subtenant. Any attempted assignment or subletting (subject to made without Landlord’s consent shall, at the provisions option of Section 5.1.12 hereof); no assignment or subletting Landlord, terminate this Lease provided that Tenant shall affect the continuing primary liability remain liable for all rent due hereunder and all damages suffered by Landlord on account of Tenant (which, following assignment, shall be joint and several with the assignee); no Tenant’s breach. The consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent by Landlord to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that construed as a waiver or release of Tenant is not then in default from the terms of any covenant or obligation under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, nor shall the collection or acceptance of rent from any such assignee, subtenant or occupant constitute a waiver or release of Tenant is:of any covenant or obligation contained in this Lease, nor shall any such assignment or subletting be construed to relieve Tenant from obtaining the consent in writing of Landlord to any further assignment or subletting. In the event that Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant and hereby authorizes each such subtenant to pay said rent directly to Landlord.
(iB) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1Paragraph 5(A) above, Tenant may assign this Lease or sublet the Premises or any portion of the Premises thereof, without Landlord's ’s consent (but upon prior written notice to Landlord), to any corporation wholly owned by Tenant or wholly owned by any entity owning one hundred percent (i100%) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's ’s stock or membership interests, or to any entity which acquired all the assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as a going concern of the date hereofbusiness that is being conducted on the Premises or to any entity which is a member of Tenant, provided that Tenant provides remains fully liable for the obligations of Tenant under this Lease and that in the event of an assignment, such entity assumes the obligations of Tenant hereunder. Tenant shall immediately notify Landlord at least thirty (30) days prior notice of any such assignment or subletting pursuant under the terms of this Paragraph. Unless permitted under the terms of this Paragraph, any sale of stock or partnership interests of Tenant shall be deemed a transfer of this Lease subject to either the terms of the foregoing clauses (i) or (iiParagraph 5(A). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.
Appears in 1 contract
Assignment and Subletting. Not without the prior written consent of Landlord to assign this LeaseSubtenant shall not assign, to make any subleasetransfer, mortgage, pledge, or to encumber this Sublease, nor sublet or rent the Premises or any part thereof, nor permit occupancy of the Premises or any part thereof by anyone other than TenantSubtenant, voluntarily without the prior written consent of Sublandlord and, to the extent required by the provisions of Article 13 of the Prime Lease, of Prime Landlord, nor shall any assignment or transfer of this Sublease be effectuated by the direct or indirect transfer of any interest by Subtenant or by the operation of law, except as hereinafter provided; as Additional Rentlaw or otherwise without the prior written consent of Sublandlord and, to the extent required by the provisions of Article 13 of the Prime Lease, of Prime Landlord (any such assignment, transfer, mortgage, pledge, encumbrance, transfer of interests, sublease, rental or occupancy being referred to herein as a “Subtenant Transfer”). In the event of a Subtenant Default hereunder, Subtenant hereby assigns to Sublandlord the rent due from any subtenant of Subtenant and hereby authorizes each such subtenant to pay said rent directly to Sublandlord. Subtenant agrees to reimburse Landlord Sublandlord promptly for reasonable legal and other expenses incurred by Sublandlord (including those billed to Sublandlord by Prime Landlord and additional rent, if any, charged pursuant to Sections 13.4(a)(iv) and 13.7 of the Prime Lease) in connection with any request requests by Tenant Subtenant for consent to assignment or subletting (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting any Subtenant Transfer. No Subtenant Transfer shall affect the continuing primary liability of Tenant Subtenant (which, following an assignment, shall be joint and several with the assignee); no . No consent to any of the foregoing Subtenant Transfer in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency Any Subtenant Transfer in contravention of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default under this Lease and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after the date of such termination notice from Landlord, in which event such termination notice shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease 12 shall be void and shall constitute a Default. Provided Prime Landlord consents or sublet any portion of the Premises without Landlord's is deemed to consent to a Subtenant Transfer, (i) any successor Sublandlord’s consent will not be unreasonably withheld and will be governed by the provisions of Tenant resulting from an acquisition Section 13.4 of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenant.the
Appears in 1 contract
Sources: Sublease Agreement (Sunrun Inc.)
Assignment and Subletting. Not (a) Tenant shall not have the right to assign, sublet, transfer or encumber this lease, or any interest therein, without the prior written consent of Landlord Landlord, such consent not to assign this Leasebe unreasonably withheld or delayed. Any attempted assignment, to make any subleasesubletting, transfer or to permit occupancy encumbrance by Tenant in violation of the Premises terms and covenants of this Paragraph shall be void. All cash or other proceeds of any assignment, such proceeds as exceed the rentals called for hereunder in the case of a subletting and all cash or other proceeds of any other transfer of Tenants interest in this lease shall be paid to Landlord, whether such assignment, subletting or other transfer is consented to by Landlord or not, unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire in any such proceeds to Landlord. Any assignment, subletting or other transfer of Tenants interest in this lease shall be for an amount equal to the then fair market value of such interest. These covenants shall run with the land and shall bind Tenant and Tenants heirs, executors, administrators, personal representatives, representatives in any bankruptcy proceeding, successors and assigns. Any assignee, sublessee or transferee of Tenant's interest in this lease (all such assignees, sublesses and transferees being hereinafter referred to as "successors"), by assuming Tenant's obligations hereunder shall assume liability to Landlord for all amounts paid to persons other than Landlord by such successors in contravention of this Paragraph. No assignment, subletting or other transfer, whether consented to by Landlord or not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an "event of default" as hereinafter defined, if the premises or any part thereof are then assigned or sublet, Landlord, in addition to any other remedies herein provided, as provided by anyone other than Tenant, voluntarily or by operation of law, except as hereinafter provided; as Additional Rent, may at its option collect directly from such assignee or subtenant all rents becoming due to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to under such assignment or subletting sublease and apply such rent against any sums due to Landlord for 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.
(subject b) If this lease is assigned to any person or entity pursuant to the provisions of Section 5.1.12 hereofthe Bankruptcy Code 11 U.S.C. 101 et seq., (The "Bankruptcy Code"); no , any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or subletting shall affect the continuing primary liability of Tenant (which, following assignmentdelivered to Landlord, shall be joint and several with remain the assignee); no consent to any exclusive property of Landlord and shall not constitute property of Tenant or of the foregoing in a specific instance shall operate as a waiver in any subsequent instanceestate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's consent property under the preceding sentence not paid or delivered to any proposed assignment Landlord shall be held in trust for the benefit of the Landlord and be promptly paid or subletting delivered to Landlord.
(c) Any person or entity to which this lease is required both as assigned pursuant to the terms and conditions thereof and as to the consistency provisions of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In additionBankruptcy Code, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as deemed, without further act or deed, to the reasonable creditworthiness have assumed all of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant shall not be unreasonably withheld, provided that Tenant is not then in default obligations arising under this Lease lease on and that such assignee or subtenant pays therefor the greater of the Fixed Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5) days after afer the date of such termination notice from Landlord, in which event assignment. Any such termination notice assignee shall be of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of beneficial interest) upon demand execute and there shall occur any change in the identity of any of the persons then having power deliver to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of Landlord an instrument confirming such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant may assign this Lease or sublet any portion of the Premises without Landlord's consent to (i) any successor of Tenant resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation of Tenant and (ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal to or greater than the net worth of Tenant as of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantassumption.
Appears in 1 contract
Sources: Lease Agreement (Netspeak Corp)
Assignment and Subletting. Not without Subtenant may not assign, sublet, transfer, pledge, hypothecate or otherwise encumber the prior written consent of Landlord to assign this LeaseSublease Premises, to make any subleasein whole or in part, or to permit the use or occupancy of the Sublease Premises or any part thereof by anyone other than TenantSubtenant, voluntarily or by operation of lawits contractors, except as hereinafter provided; as Additional Rentagents and invitees, to reimburse Landlord promptly for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for unless Subtenant has obtained Sublandlord’s consent to assignment or subletting thereto (subject to the provisions of Section 5.1.12 hereof); no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee); no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance. Landlord's consent to any proposed assignment or subletting is required both as to the terms and conditions thereof and as to the consistency of the proposed assignee's or subtenant's business with other uses and tenants in the Building. In addition, as to any assignee (but not as to any sublessee) Landlord's consent shall be required as to the reasonable creditworthiness of the proposed assignee in view of market conditions then prevailing for leases having terms and conditions comparable to this Lease. Landlord's consent to any assignment or subletting by Tenant which shall not be unreasonably withheldwithheld or delayed) and the consent of Master Landlord if required by the Master Lease. Regardless of Sublandlord’s consent, provided that Tenant no subletting or assignment shall release Subtenant of its obligations hereunder. Any rent or other consideration payable to Subtenant pursuant to any sublease or assignment permitted by this paragraph which is not then in default under this Lease and that such assignee or subtenant pays therefor the greater excess of the Fixed Rent payable to Sublandlord pursuant hereto (“Sublease Bonus Rent, Additional Rent, and all other payments then payable hereunder, or the then fair market rent for the Premises. If Tenant requests Landlord's consent to assign this Lease or to sublet any portion of the Premises such that Tenant shall not occupy at least 40,000 r.s.f. of the Premises after the date of commencement of such sublease, Landlord shall have the option, exercisable by written notice to Tenant given within 10 days after receipt of such request, to terminate this Lease as of the date of commencement the proposed sublease or assignment; provided, however, that Tenant shall have the right to rescind any such request in the event Landlord elects to so terminate this Lease by notice given to Landlord within five (5”) days after the date of such termination notice from Landlord, in which event such termination notice shall be divided equally between Sublandlord and Subtenant, after Subtenant recovers all out of no further force or effect; If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or pocket expenses including but not having shares of beneficial interest) limited to commissions and there shall occur any change in the identity legal fees and after payment to Master Landlord of any of amount required to be paid under the persons then having power Master Lease. Anything contained herein to participate in the election or appointment of the directorscontrary notwithstanding, trustees or other persons exercising like functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise riot a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant; Tenant shall so notify Landlord and Landlord may terminate this Lease by notice to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment, the credit of Tenant is thereby impaired. This paragraph shall not apply if the initial Tenant named herein is a corporation and the outstanding voting stock thereof is listed on a recognized securities exchange. Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant Subtenant may assign this Lease Sublease or sublet the Sublease Premises or any portion thereof, without Sublandlord’s consent, but subject to Master Landlord’s consent pursuant to the terms of the Premises without Landlord's consent Master lease, to (i) any successor of Tenant corporation which controls, is controlled by or is under common control with Subtenant, or to any corporation resulting from an acquisition of all or substantially all of Tenant's assets or a merger or consolidation with Subtenant, or to any person or entity which acquires all the assets of Tenant and Subtenant’s business as a going concern, provided that (i) the assignee or sublessee assumes, in full, the obligations or Subtenant under this Sublease, (ii) any Affiliate of Tenant Subtenant remains fully liable under this Sublease, and (as hereinafter definediii) whose net worth is equal to or greater than the net worth of Tenant as use of the date hereof, provided that Tenant provides Landlord at least thirty (30) days prior notice of such assignment or subletting pursuant to either of the foregoing clauses (i) or (ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any entity controlled by, controlling or under common control with Tenantsublease Premises remains unchanged.
Appears in 1 contract