Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease. 25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer. 25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises. 25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following: (a) Tenant shall remain fully liable under this Lease during the unexpired Term; (b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; (c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request; (d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment; (e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment; (f) Any consent to such Transfer shall be effected on Landlord’s forms; (g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord. (h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use; (i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same; (j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and (k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2. 25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void. 25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease. 25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer. 25.8. [Intentionally omitted] 25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 6 contracts
Sources: Sublease Agreement (Atara Biotherapeutics, Inc.), Lease (CareDx, Inc.), Lease (CareDx, Inc.)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange or a Permitted Transfer as defined below), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (a) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five [***] percent (25[***]%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than a Permitted Transferee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) business days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Sources: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Assignment or Subletting. 25.1. Except as hereinafter provided, 6.1 Tenant shall notnot assign, either mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily or involuntarily, by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, otherwise) or sublet the Premises or any part hereof (eachthereof, a “Transfer”), or permit the use of the Premises by anyone other than Tenant without Landlord’s the prior written consentconsent of Landlord first being obtained. If Tenant is a corporation or a partnership, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty-one percent (51%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof or partnership interests in Tenant, as the case may be, shall constitute an assignment hereunder for which such consent Landlord may not unreasonably withhold; providedis required. Further, however, that Tenant shall have the right to not assign all or any portion of its interest under this Lease or sublet all the Premises or any portion of the Premises without Landlord’s consent thereof to any parentcorporation which controls, subsidiary is controlled by or affiliate of is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord. Any of the foregoing acts without such consent shall be void and, at the sole option of Landlord, constitute an Event of Default entitling Landlord to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law. The provisions of Section shall not apply to transactions entered into by Tenant with (i) an “Affiliate” (as herein defined) or (ii) a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant’s assets are transferred (whether directly or by virtue of the transfer of substantially all of Tenant’s capital stock), (a “Permitted Transferee”) provided (a) such merger, consolidation or transfer of assets is not principally for the purpose of transferring the leasehold estate created hereby, and (b) such Permitted Transferee has net worth equal to Tenant as of the date of this Lease For the purposes of this Section, an Affiliate means (i) a corporation controlled by, controlling or stock of Tenant under the common control with tenant (an “Allowable Transferaffiliated corporation”)) or (ii) a partnership or joint venture in which Tenant or an affiliated corporation owns at least 30% of the general partnership or joint venture interests therein and Tenant or such affiliated corporation of Tenant has actual control of such partnership or joint venture. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding Without limiting the generality of the foregoing, in no event a corporation shall Tenant not be released from any deemed controlled by another entity unless at least 30% of each class of its obligations under this Leaseoutstanding capital stock is owned, both beneficially and of record, by such entity and such entity has actual control of such corporation. The provisions regarding the transfer of the capital stock of a corporate tenant set forth in Section 6 shall not apply to any corporation where all of its outstanding capital stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded in the “over the counter” market with quotations reported by the National Association of Securities Dealers.
25.2. 6.2 In the event that Tenant desires should desire to effect a Transfersublet the Premises or any part thereof, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)or assign this Lease, Tenant shall provide Landlord with written notice to Landlord of such desire at least sixty (the “Assignment Notice”60) containing information (including references) concerning the character days in advance of the proposed transferee, assignee effective date of such subletting or sublessee; assignment. Such notice shall include: (i) the Assignment Date; any ownership or commercial relationship between Tenant and name of the proposed transfereesublessee or assignee, (ii) the nature of business to be conducted by the proposed sublessee or assignee or sublessee; and in the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease including but not limited to a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease, all in such detail and (iv) the most recent financial statements or other financial information concerning the proposed sublessee or assignee as Landlord shall reasonably may require. At any time within twenty (20) days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) terminate this Lease as to the space affected by the proposed subletting or assignment, effective ninety (90) days from the date of Landlord’s notice, (ii) consent to the proposed subletting of the Premises or assignment of this Lease or (iii) disapprove of the proposed subletting or assignment. Landlord may elect to terminate this Lease as to the space affected by the proposed assign or subletting in its sole and absolute discretion. If Landlord does not elect to terminate this Lease, however, Landlord shall reimburse not unreasonably withhold its consent to a proposed subletting or assignment. Without limiting other situations in which it may be reasonable for Landlord to withhold its consent to any proposed assignment or sublease, Landlord and Tenant agree that it shall be reasonable for all Landlord to withhold its consent in any one or more of the following situations: (i) in Landlord’s reasonable attorneys’ fees and judgment, the proposed subtenant or assignee or the proposed use of the Premises would detract from the status of the Building as a first-class office building or would generate foot traffic or density materially in excess of the amount generated by Tenant’s business or would otherwise be in excess of that customary for the Building or would impose a materially greater load upon elevator, janitorial, security or other services than is generated by Tenant’s business or would otherwise in excess of that be customary for the Building; (ii) in Landlord’s reasonable out-of-pocket costs incurred judgment, the financial worth of the proposed subtenant or assignee does not meet the credit standards applied by Landlord in reviewing Tenantconsidering other tenants under leases with comparable terms, or Tenant shall have failed to provide Landlord with reasonable proof of the financial worth of the proposed subtenant or assignee; (iii) in Landlord’s request for such Transfer.
25.3reasonable judgment, the business history and reputation in the community of the proposed subtenant or assignee does not meet the standards applied by Landlord in considering other tenants in the Building; or (iv) the proposed subtenant or assignee shall be a then existing or prospective tenant of the Building, provided that in any event Landlord shall be entitled to exercise its right of termination in lieu of consenting to a transfer, as set forth above. Subject to obtaining Landlord’s consent in accordance with the requirements of this Section, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable order for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurbe binding on Landlord, Tenant would no longer occupy any must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the sublessee or assignee shall expressly assume all obligations of Tenant under this Lease as to the portion of the PremisesPremises subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully executed copy thereof has been received by Landlord.
25.4. As conditions precedent 6.3 Landlord and Tenant agree that fifty percent (50%) of any Rent or other consideration received or to Landlord’s consent to a Subject Transfer, Landlord may require any be received by or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account for the benefit of Tenant as a result of any consideration of any kind whatsoever (includingassignment or subletting, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental Additional Rent, Base Rent and other charges due Operating Costs and Real Estate Taxes which Tenant is obligated to pay Landlord under this LeaseLease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease or assignment), and after deducting reasonable assignment or subletting fees, which will include, but are not limited to marketing costs, legal fees, brokerage fees, construction costs and other leasing concessions, shall be payable to Landlord as Additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder (“Excess Rent”). Landlord’s share of such Excess Rent or other consideration shall be paid by the Tenant directly to Landlord at the same time as such rent or other consideration is paid to Tenant. Concurrently with the payment of Excess Rent by Tenant to Landlord, Tenant shall pay twenty-five percent (25%) furnish Landlord with a complete statement, certified by an independent certified public accountant of all of such excess to LandlordTenant’s choice, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, setting forth in detail the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy computation of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Excess Rent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Sources: Sublease (Callidus Software Inc), Sublease (Callidus Software Inc), Lease Agreement (Taleo Corp)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, howevercondition or delay. Notwithstanding the foregoing, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent to any parent, subsidiary or affiliate of Tenant; the Premises or any party part thereof to (a) any person that results from a merger as of the date of determination and at all times thereafter directly, or consolidation indirectly through one or more intermediaries, controls, is controlled by or is under common control with Tenant (“Tenant’s Affiliate”) provided that any such Tenant’s Affiliate taking an assignment of this Lease agrees in writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of such assignment or (b) any entity that succeeds to Tenant; ’s interest in this Lease by reason of merger, sale or any party that acquires acquisition (whereby the sale or acquisition consists of all or substantially all of Tenant’s stock or assets), consolidation or reorganization (“Tenant’s Successor”); provided that Tenant shall notify Landlord in writing at least thirty (30) days prior to the assets effectiveness of such Transfer to Tenant’s Affiliate or stock of Tenant Tenant’s Successor (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth (as of both the day immediately prior to and the day immediately after the Exempt Transfer) that is equal to or greater than the net worth (as of both the Execution Date and the date of the Exempt Transfer) of the transferring Tenant. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”)direct or cause the direction of the management and policies of such person. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.7 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease Transfer qualifies as an Exempt Transfer;
(d) Tenant shall not be diminished or reduced by the proposed Subject Transfer. Such provide Landlord with evidence shall include, without limitation, evidence reasonably satisfactory to Landlord respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(ce) Tenant shall reimburse Landlord for Landlord’s actual reasonable out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(df) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(eg) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fh) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gi) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hj) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ik) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jl) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(ko) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.729.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.7. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than pursuant to an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease (or, in the event of a proposed sublease, Landlord shall have the option to terminate the Lease only as to the portion of the Premises proposed to be subleased) as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.8. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Sublease (Zentalis Pharmaceuticals, Inc.), Sublease (Zentalis Pharmaceuticals, LLC), Sublease (Zentalis Pharmaceuticals, LLC)
Assignment or Subletting. 25.1. 30.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent Tenant’s right to the Premises or any part thereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, including, but not limited to, a purchaser of Tenant; ’s stock or any party assets as pan ongoing concern (“Tenant’s Affiliate”), provided that results from a merger or consolidation Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant ’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer other than an Allowable An Exempt Transfer shall be referred also include a public or private placement or offering of stock in a corporation that is Tenant to herein as a raise additional capital, including any initial public offering of such stock (collectively, an “Subject TransferAdditional Funding”). Notwithstanding , so long as following any such Additional Funding, Tenant remains substantially the foregoing, in no event shall Tenant be released from any of its obligations under this Leasesame legal entity that existed prior to such Additional Funding.
25.2. 30.2 In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 30.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 30.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz.) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to quality as “rents from real property” within the meaning of Section 850(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 30.4 As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises, but excluding the value reasonably attributable to Tenant’s business, including but not limited to, Tenant’s intellectual property and goodwill, pursuant to an Exempt Transfer) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below22.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.222.2.
25.5. 30.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article 30 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 30.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 30.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.830.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 30.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 30.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. 30.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Lease (Tocagen Inc), Lease (Tocagen Inc), Lease (Tocagen Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedA. To the extent provided under the Prime Lease, Tenant shall notnot (i) assign, either voluntarily convey, mortgage or hypothecate this Sublease or any interest under it, (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or (iii) further sublet the Premises or any part hereof thereof or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Tenant. Landlord's consent to an assignment of this Sublease or a further sublease of the Premises shall not be unreasonably withheld, a “Transfer”)conditioned or delayed, and if Landlord consents thereto, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord if such consent is required to be obtained under the Prime Lease. Any cost of obtaining Prime Landlord's consent shall be borne by Tenant.
B. Notwithstanding the provisions of subsection (A) of this Section 12, and only to the extent permitted under Section 13 of the Prime Lease, Tenant may assign its interests herein or further sublet the Premises or any portion thereof, without Landlord’s prior written consent's consent and without providing any additional rent to Landlord, which consent Landlord may not unreasonably withhold; providedto any entity which, howeverat the time of the initial assignment or sublease, that Tenant shall have the right to assign all controls, is controlled by or is under common control with Tenant, or any portion of its interest under this Lease or sublet all or any portion of entity result- ing from the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or capital stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein Tenant, in any such case as a “Subject Transfer”). Notwithstanding going concern of the foregoingbusiness that is being conducted on the Premises, provided that said assignee assumes, in no event shall Tenant be released from any full, the obligations of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree Sublease in an agreement delivered to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee C. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or sublessee’s use of the Premises subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not require any change as a guarantor or surety to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing same extent as though no assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subletting had been made.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Metaldyne Corp), Fittings Facility Sublease (Metaldyne Corp), Asset Purchase Agreement (Trimas Co LLC)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, to any entity resulting from the merger, consolidation, acquisition or restructuring of Tenant; , or any party that results from a merger or consolidation to the purchaser in connection with the sale of Tenant; or any party that acquires all or substantially all of the assets or stock used in connection with the business operated by Tenant at the Building (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Sections 25.2 and 25.8 of the Lease shall not be referred applicable to herein as a “Subject any Exempt Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises is not an Exempt Transfer and provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to Transfer this Lease to a proposed transferee, assignee or sublessee other than an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 25.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Receptos, Inc.), Lease (Receptos, Inc.)
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00 no more than $350.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentthereof, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.1Tenant agrees not to assign or in any manner transfer this Lease or any estate or interest therein without the prior written consent of the Landlord, and not to sublet said premises or any part or parts thereof or allow anyone to come in with, through or under it without the like consent of Landlord. Except as hereinafter providedConsent by Landlord to one or more assignments of this Lease or to one or more subletting of said leased premises shall not be deemed to be a waiver of the requirement to obtain Landlord's consent to any future subletting or assignment. Landlord's consent to a proposed assignment or subletting shall not be unreasonably withheld, but Landlord may reasonably refuse to approve a proposed assignment or sublease if the proposed Tenant's business usage is not compatible, in the sole judgement of Landlord, with the business activities of other retail tenants in the South State Street retail area within which the Building Complex is located, or if the proposed Tenant shall is not, either voluntarily in the sole judgment of Landlord, financially able to comply with the provisions of this Lease. It is specifically agreed by Landlord that Tenant may assign this Lease to another tenant who will be using the Building for a use other than that permitted under paragraph 5(a), and the Landlord may not withhold its consent to a proposed sublease or assignment to a tenant whose usage of the Building would not otherwise be permitted under paragraph 5(a) as long as such sublease or assignment meets the other requirements set forth in this paragraph. Any sublease or assignment shall contain an express agreement of the sublessee or assignee to be bound by operation all the terms and conditions of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet specifically including the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)restrictive provisions contained in paragraph 5(b) hereof. Any Transfer other than an Allowable Transfer assignment or subletting in violation of this section shall be referred deemed to herein as be a “Subject Transfer”). Notwithstanding default under the foregoing, in no event shall Tenant be released from any terms of its obligations under this Lease.
25.2. In the event that Tenant desires to effect assign this Lease or sublease all or a Transferportion of the Building Complex, thenTenant shall provide Landlord with an executed copy of the proposed sublease or assignment, at least twenty (20) days with respect showing all of the terms and conditions of said sublease or assignment. Landlord may condition its consent to a proposed assignment or sublease and at least upon an adjustment in the rental provisions of paragraph 2 in the event that, in the reasonable opinion of Landlord, the Percentage Rent under paragraph 2(b) would, or could be materially affected as a result of such assignment or sublease. Landlord may also condition its consent to an assignment of this Lease or a sublease of all or a portion of the Building Complex upon an adjustment in the rental provisions of paragraph 2 in the event that the base rent to be paid by the proposed assignee or subtenant exceeds the per square foot minimum rent payable under paragraph 2(a), it being the intent that any excess rent (determined on a per square footage basis) which the Tenant would receive as a result of the assignment or sublease shall be paid to Landlord. In the event that the Tenant desires to assign this Lease or sublease the entire Building, the Landlord may, within thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to from the date when Tenant desires that the Transfer proposed sublease or assignment is presented to be effective (the “Assignment Date”)Landlord for its approval, Tenant shall provide elect, by written notice to Landlord (Tenant, to terminate this Lease as of the “Assignment Notice”) containing information (including references) concerning the character effective date of the proposed transfereesublease or assignment, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlordevent, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant neither party shall have the right to collect such rent.any
Appears in 2 contracts
Sources: Lease (Nebraska Book Co), Lease Agreement (NBC Acquisition Corp)
Assignment or Subletting. 25.115.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.215.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.415.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 15.3.1. Tenant shall remain fully liable under this Lease during Lease, and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired Term;
(b) Term after the Transfer Date. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord agrees that the value of Landlord’s interest under this Lease it shall not be diminished (and shall not be deemed to be) a guarantor or reduced surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee this Lease or sublesseeby Applicable Laws;
(c) 15.3.2. Tenant shall reimburse Landlord for Landlord’s 's actual third-party costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, in an amount not to exceed Five Thousand Dollars ($5,000.00);
(d) 15.3.3. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five be entitled to retain one hundred percent (25100%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash paymentexcess;
(e) 15.3.4. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 15.3.5. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 15.3.6. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use, unless otherwise approved by Landlord;
(i) 15.3.7. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
15.3.8. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
15.3.9. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
15.3.10. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.27.
25.515.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.715.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.815.6. [Intentionally omitted]Notwithstanding anything to the contrary contained herein, Tenant may, at any time and from time to time, without the consent of Landlord, assign this Lease or any interest hereunder to, or sublease or license the Premises or any part thereof to (each of the following is referred to herein as a “Permitted Transfer”): (a) any successor entity of Tenant resulting from a merger, reorganization, or consolidation with Tenant (provided that such merger, reorganization or consolidation is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (b) any initial public offering by Tenant or any or its affiliates, (c) any entity succeeding to all or substantially all of the business and assets of Tenant (provided that such transaction is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (d) any entity that, as of the date of determination, is an Affiliate of Tenant; or (e) any entity that, concurrently with such Transfer, is acquiring all or substantially all of the business being conducted at the Premises by Tenant or its affiliates, provided that (i) Tenant shall notify Landlord in writing at least twenty (20) days prior to the effectiveness of such Permitted Transfer, (ii) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as a Permitted Transfer and shall otherwise comply with the requirements of this Lease regarding such Transfer, (iii) the transferee has a net worth that is equal to or greater than the net worth of the transferring Tenant, and (iv) Tenant and each Guarantor (in accordance with such Guarantor’s Guaranty) shall remain fully liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant.
25.915.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Innovative Industrial Properties Inc), Lease Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant a) The LESSEE shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateneither transfer, assign, pledge, encumber nor sublet this LEASE or otherwise transfer this Leaseany interest in it, or sublet any property on the Premises LEASED PROPERTY, or grant any interest, privilege, or license whatsoever in connection with this LEASE without the prior written consent of GOVERNMENT. Consent shall not be unreasonably withheld or delayed.
b) Any SUBLEASE granted by LESSEE shall contain a copy of this LEASE as an attachment and be consistent with the terms and conditions of this LEASE and shall terminate immediately upon the expiration or any part hereof (each, a “Transfer”)earlier termination of this LEASE, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have any liability on the right part of GOVERNMENT to assign all LESSEE or any portion SUBLESSEE, except as specifically stated in this LEASE. No SUBLEASE shall relieve LESSEE of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2LEASE. In Under any SUBLEASE made with or without consent of GOVERNMENT, the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant SUBLESSEE shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or have assumed all of the following:
(a) Tenant shall remain fully liable obligations of LESSEE under this Lease during LEASE. Every SUBLEASE shall be subject to, and shall be deemed to contain, the unexpired Term;Environmental Provisions set forth in Clause 35 below.
(bc) Tenant LESSEE shall provide Landlord with evidence reasonably satisfactory submit to Landlord that GOVERNMENT for its prior written consent, a copy of each SUBLEASE the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject TransferLESSEE proposes to execute. Such evidence shall include, without limitation, evidence respecting consent may include a requirement that LESSEE renegotiate the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due SUBLEASE to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess conform to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6LEASE. The consent by Landlord Consent to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant SUBLEASE shall not be deemed a waiver of taken or construed to diminish or enlarge any of the rights or obligations of either of the parties of this LEASE. Should a conflict arise between the provisions of this Lease or LEASE and a consent provision of the SUBLEASE, the provisions of this LEASE shall take precedence. Upon its execution, a copy of each SUBLEASE shall be immediately furnished to any Transferthe GOVERNMENT.
25.8d) All requests for SUBLEASEs will require review by the appropriate government agencies. [Intentionally omitted]
25.9Any costs associated with the modification of the LEASE, including but not limited to studies and environmental reviews, will be at no cost to the GOVERNMENT. Requests for a SUBLEASE shall include payment of a Real Estate Processing Fee at the discretion of the GOVERMENT. If Tenant sublets the Premises or any potion thereofrequest for a SUBLEASE is denied, Tenant hereby immediately and irrevocably assigns to Landlordthe Real Estate Processing Fee will be returned, without interest, as security soon as practicable.
e) SUBLEASES may be authorized only by a written modification to the LEASE. Request for Tenant’s obligations under this Lease, all rent from any such subletting, modification will include a copy of the draft SUBLEASE or contract between the LESSEE and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentproposed SUBLESSEE.
Appears in 2 contracts
Sources: Lease for Agricultural Purposes, Lease for Agricultural Purposes
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant 11.1 Lessee shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not assign this Lease, or any interest herein, or sublet or allow any other person, firm, or corporation to use or occupy the Premises Premises, or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Lessor, which consent Landlord may will not be unreasonably withhold; providedwithheld or delayed. If Lessor does not respond in writing to Lessee's request for consent within ten (10) business days of receipt of Lessee's request therefor, however, that Tenant Lessor shall be deemed to have given consent. Lessor shall have the right to assign make such investigations as it deems reasonable and necessary in determining the acceptability of the proposed assignee or subtenant. Such investigations may include inquiries into the financial background, business history, capability of the proposed assignee or subtenant in its line of business, and the quality of its operations. Under no circumstances shall Lessor be obligated to consent to the assignment of this Lease or the subletting of the Premises to any entity whose operations violate the restrictive covenants described in Section 26 hereof. Lessee shall provide to Lessor such information as Lessor may reasonably require to enable it to determine the acceptability of the proposed assignee or subtenant, including information concerning all of the foregoing matters, and Lessor shall have no obligation to consent to any assignment or subletting unless it has received from Lessee (at no cost or expense to Lessor) the most recent audited financial statements of the proposed assignee or subtenant and such other information as Lessor reasonably requires. For purposes of this Section 11, an assignment of stock or other ownership interest in Lessee shall be deemed an assignment within the meaning of and be governed by this Paragraph. No assignment or subletting (with or without the consent of Lessor) shall release Lessee from its obligations under this Lease nor shall Lessee permit this Lease or any portion interest herein or in the tenancy hereby created to become vested in or owned by any other person, firm, or corporation by operation of law or otherwise. The power of Lessor to give or withhold its interest under consent to any assignment or subletting shall not be exhausted by the exercise thereof on one or more occasions, but shall be a continuing right and power with respect to any type of transfer, assignment or subletting.
11.2 If Lessee shall assign this Lease or sublet all the Premises in any way not authorized by the terms hereof, the acceptance by Lessor of any Amount Due from any person claiming as assignee, sublease, or otherwise shall not be construed as a recognition of or consent to the assignment or subletting or as a waiver of the right of Lessor thereafter to collect any rent from Lessee, it being agreed that Lessor may at any time accept any Amount Due under this Lease from any person offering to pay it without thereby acknowledging the person so paying as a lessee in place of Lessee herein named, and without releasing Lessee from the obligations of this Lease, and without recognizing the claims under which such person offers to pay any Amount Due, but it shall be taken to be a payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this Lease, Lessee shall have the right, without the prior consent of Lessor but subject to Lessor's rights to notice and prohibitions contained herein, to assign this Lease or sublet the whole or any portion part of the Premises without Landlord’s consent to any parent, subsidiary a corporation or affiliate of Tenantentity which: (1) is Lessee's parent corporation; or any party that results from (2) is a merger wholly-owned subsidiary of Lessee or consolidation of TenantLessee's parent corporation; or any party that acquires all (3) is a corporation of which Lessee or Lessee's parent corporation owns in excess fifty percent (50%) of the outstanding capital stock; or (4) is a result of consolidation or merger with Lessee and/or Lessee's parent corporation; or (5) is a corporation to which substantially all of the Lessee's assets or stock of Tenant (an “Allowable Transfer”)have been transferred. Any Transfer other than an Allowable Transfer transfer pursuant to 1, 2, 3, 4 or 5 above, shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior subject to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingfollowing conditions:
(a) Tenant Lessee shall remain fully liable under this Lease during the unexpired Term;
term of this Lease; and (b) Tenant any such assignment, sublease or transfer shall provide Landlord with evidence reasonably satisfactory be subject to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status all of the proposed transfereeterms, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs covenants and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation conditions of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and such assignee, sublessee or transferee shall expressly assume the obligations of Lessee under this Lease by a document reasonably satisfactory to Lessor. Lessee shall have the obligation to give Lessor prior written notice of its intent of any such arrangement, and if Lessor reasonably determines that the proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that is engaged in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of a business which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use would materially interfere with the operation of the Premises shall not require Property or that permitting the assignment or subletting would cause a violation by Lessor of its obligations under any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy lease covering a portion of the Premisesproperty, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Lessor shall have the right to collect prohibit such rentarrangement based upon the issue of the business of the proposed assignee or sublessee or the compatability of the proposed assignee or sublessee with the businesses in the Building.
Appears in 2 contracts
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily without the prior written consent of Landlord and Prime Landlord (Landlord’s consent not to be unreasonably withheld),
(i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Tenant’s request for Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease shall be in writing and no proposed assignment or sublease by Tenant may be for less than the entire Premises. In the event that Tenant requests Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease, Landlord may instead elect to terminate this Sublease by written notice to Tenant within thirty (30) days following Tenant's written request for Landlord's and Prime Landlord’s consent to any parentproposed assignment or sublease. If Landlord and Prime Landlord shall consent in writing to a proposed assignment or sublease and Tenant shall assign this Sublease or sublet the Premises, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Landlord shall be referred entitled to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice pay to Landlord Landlord, as Additional Rent, one hundred percent (100%) of all sums and other consideration paid to Tenant by the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; subtenant for or by reason of such assignment or sublease less the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable actual out-of-pocket costs expenses reasonably incurred by Landlord Tenant in reviewing Tenant’s request connection with such assignment or sublease on account of brokerage commissions, advertising expenses, legal fees, work contributions, the cost of work performed by Tenant to prepare the Premises for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublesseesubtenant’s financial qualifications occupancy, and (b) Landlord may only consider all other costs and expenses incurred by Tenant in effecting such financial qualifications in assignment or sublease. Such Additional Rent shall be payable as and when received by Tenant from the event that, were the transfer, assignee or subtenant. No permitted assignment or sublease to occur, Tenant would no longer occupy will in any portion way affect or reduce any of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all obligations of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSublease.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)a) The Lessor may, without Landlord’s prior written consentconsent of the Lessee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of its rights and obligations hereunder in connection with (i) a sale by the Premises without Landlord’s consent to any parent, subsidiary or affiliate Lessor of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets Leased Premises or the Site or (ii) the transfer of all or substantially all of the Leased Premises or the Site through a sale or transfer of stock or assets, a merger or reverse merger, or other operation of Tenant law (whether through one or a series of related transactions, and including any such transaction in which the Lessor retains a direct or indirect ownership interest).
(b) The Lessee shall not assign or sublet this Lease or any of its rights and obligations under this Lease without the prior written consent of the Lessor, such consent not to be unreasonably withheld or delayed, taking into consideration (i) the financial capacity of the assignee to satisfy any financial obligations and / or liabilities which may arise pursuant to this Lease and (ii) the ability of the assignee to safely operate chemical plants in an “Allowable Transfer”)integrated chemical manufacturing complex in accordance with Good Industry Practice, and provided that such assignment or sublease is in connection with a sale, conveyance, disposition, divestiture, contribution to a joint venture or a similar transaction, including by merger, consolidation, reorganization, or other business combination by the Lessee of all or substantially all of the Leased Premises and Lessee’s Improvements. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding In connection with the foregoing:
(A) The Lessor may, acting reasonably, condition its consent on an amendment to the terms of this Lease to reflect reasonable increases in no event the costs incurred by the Lessor in taking the measures reasonably required to adequately protect its competitive information from disclosure where any assignee is a Direct Competitor;
(B) the Lessee shall Tenant reimburse the Lessor for any licenses or Third Party consents required in connection with such assignment and
(C) such assignee shall execute an express assumption of all of the Lessee’s obligations under this Lease through the execution of an assignment and assumption agreement, and only upon such assumption, the assignor Lessee shall be released from any of its all obligations and liabilities under this Lease.
25.2. In (c) Notwithstanding the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferforegoing, but not more than ninety (90subject to Section 12.1(b)(ii) days in any eventhereof, prior the Lessee shall be permitted to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assign or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or sublease this Lease and/or any of Landlord’s affiliates as a Real Estate Investment Trust its rights and obligations under the Code; provided this Lease to an Affiliate in connection with an internal restructuring, provided, that (a) Landlord agrees to reasonably evaluate in connection with any proposed transferee’ssuch assignment of this Lease, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion Affiliate shall execute an express assumption of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable Lessee’s obligations under this Lease during through the unexpired Term;execution of an assignment and assumption agreement, provided, however, such assignor Lessee shall in no event be released from any obligations and liabilities under this Lease.
(bd) Tenant Except as set forth above, either a transfer of a controlling interest in the shares of the Lessee (if the Lessee is a corporation or trust) or a transfer of a majority of the total interest in the Lessee (if the Lessee is a partnership or a limited liability company) at any one time or over a period of time through a series of transfers, shall provide Landlord with evidence reasonably satisfactory to Landlord that the value be deemed an assignment of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status subject to all of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesprovisions of this Article 12, including, without limitation, reasonable attorneys’ feesthe requirement that the Lessee obtain the Lessor’s prior consent thereto. Except as otherwise provided in this Section 12.1(b), charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises Lessee shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfersell, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing transfer, convey, divest or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver otherwise dispose of any of its interests in the provisions of this Lease or a consent to any TransferLeased Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Asset Transfer Agreement, Asset Transfer Agreement (GlyEco, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedWithout the written consent of Landlord first obtained in each case, Tenant shall notnot assign, either voluntarily or by operation of Applicable Lawstransfer, directly or indirectly sell, hypothecate, assignmortgage, pledge, or otherwise encumber or otherwise transfer dispose of this Lease, Lease or sublet the Leased Premises or any part hereof (each, a “Transfer”), without of the Leased Premises or permit the Leased Premises to be occupied by other persons. Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion exercise of its interest under this Lease or sublet all or any portion consent shall not be unreasonably withheld subject to such conditions for consent as provided herein. In furtherance thereof, in the case of the Premises without a subletting, Landlord’s consent may be predicated, among other things, upon Landlord becoming entitled to collect and retain all Rent and any other economic consideration payable under the sublease, and in the case of an assignment, Landlord’s consent may be predicated, among other things, upon Landlord’s becoming entitled to collect and retain any economic consideration for said assignment paid or payable by the prospective assignee to Tenant. If this Lease be assigned, or if the Leased Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect or accept Rent from the assignee, subtenant, or occupant and apply the net amount collected or accepted to the Rent herein reserved, but no such collection or acceptance shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant, or occupant as Tenant, nor shall it be construed as, or implied to be, a release of Tenant or any guarantor of the Lease from the further observance and performance by Tenant of the terms, provisions, covenants and conditions contained in this Lease. Notwithstanding anything contained herein to the contrary in the event of any assignment of Lease or subletting of this Lease to which Landlord consents, Landlord and Tenant shall divide equally any net profit derived therefrom. Landlord shall have a right of first refusal with regard to any parentproposed sublease or assignment on the same terms and conditions as contained in such proposed sublease or agreement to assign, subsidiary or affiliate which right of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer first refusal shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any exercisable by Landlord giving notice of its obligations under this Lease.
25.2. In the event Tenant desires intention to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least do so within thirty (30) business days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character after receipt of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant any assignment or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting hereunder shall not be deemed a waiver construed as releasing Tenant from any liability hereunder or as constituting the consent by Landlord to any subsequent assignment or subletting, which subsequent assignment or subletting shall require the prior written approval of any Landlord as provided herein in each instance. Any assignment, subletting, hypothecation, pledging or other disposition of Tenant’s interest hereunder, in violation of the provisions terms hereof shall be deemed null and void, and shall constitute an act of default hereunder. If Tenant is not an individual, any direct or indirect change in the ownership (legal or equitable) of a controlling and/or a majority interest of Tenant, whether such change in ownership occurs at one time or as a result of sequential incremental changes, and whether said change is by sale, assignment, hypothecation, bequest, inheritance, operation of law, merger or consolidation, or otherwise, shall be deemed an assignment of this Lease or a subject to the required consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to of Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or the failure of which shall be deemed a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentdefault hereunder.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Omnicomm Systems Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent. In no event shall Tenant perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of Landlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part thereof to any parentperson or entity that, subsidiary by way of a bona fide, arms-length transaction with legitimate business purposes not intended to circumvent the Landlord’s consent rights set forth in this Article 29, (i) as of the date of determination and at all times thereafter directly, or affiliate of indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant; or any party that results from a merger or consolidation of Tenant; or any party that , (ii) acquires all or substantially all of the Tenant’s assets or stock (iii) is a successor to Tenant as a result of any merger, consolidation or similar transaction resulting in the change of control of Tenant (“Tenant’s Affiliate”), provided that (x) Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate and otherwise comply with the requirements of this Lease regarding such Transfer, and (y) that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth that is equal to or greater than $50,000,000, and (z) such transfer will not jeopardize directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Revenue Code (as defined below) or violate any of the restrictions in clauses (w), (x), (y) and (z) of Section 29.3 below (an “Allowable Exempt Transfer”). Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Except with respect to an Allowable Transfer shall be referred to herein as a “Subject Exempt Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations perform a Transfer to or with an entity that is a tenant at the Project (when there exists available suitable space at the Project for such tenant) or that is in discussions or negotiations with Landlord to lease premises at the Project. The following shall constitute a Transfer under this Lease, but shall not require the prior written consent of Landlord: (a) the issuance of stock by Tenant for sale to the public in an initial public offering (provided that any notices or information required to be provided to Landlord under this Article shall be subject to any reporting and disclosure requirements or limitations under Applicable Law), or (b) the issuance of stock by Tenant for sale on a private basis and further provided that such private issuance of stock is a bona fide, arms-length transaction with legitimate business purposes not intended to circumvent the Landlord’s consent rights set forth in this Article 29.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer other than an Exempt Transfer, may give consideration to (a) the financial strength of Tenant and such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) in connection with a sublease, Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer (including an Exempt Transfer) or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer qualifies as an Exempt Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(cd) Tenant shall reimburse Landlord for Landlord’s actual out of pocket costs and expensesexpenses (not to exceed $1,500 provided that this Lease is not amended in connection therewith), including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(de) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid or provided by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ef) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fg) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s commercially reasonable forms;
(gh) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hi) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ij) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jk) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(l) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(m) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kn) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than in connection with an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Spark Therapeutics, Inc.), Lease Agreement (Spark Therapeutics, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably delay, condition or withhold; provided. Notwithstanding the foregoing, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of Transfer the Premises Premises, upon twenty (20) days prior written notice to Landlord but without obtaining Landlord’s consent prior written consent, to any parenta corporation or other entity which is a successor-in-interest to Tenant, subsidiary by way of merger, consolidation or affiliate corporate reorganization, or by the purchase of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interests of Tenant provided that (an a) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring this Lease, and (b) the net worth (as determined in accordance with generally accepted accounting principles (“Allowable TransferGAAP”). Any Transfer other ) of the assignee is not less than an Allowable Transfer the net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s then most current quarterly or annual financial statements, and (c) such assignee shall be referred agree in writing to herein as a assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (collectively, the “Subject TransferPermitted Assignees”). Notwithstanding the foregoing, Tenant shall have the right to sublet any portion of the Premises, upon twenty (20) days prior written notice to Landlord, but without obtaining Landlord’s prior written consent, to a Permitted Subtenant subject to the conditions precedent in no event shall Tenant be released from any of its obligations under this LeaseSection 25.9.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character character, relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requirerequire (the “Transfer Information”). Tenant shall also reimburse Landlord for all Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees fees, charges and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s connection with the review, processing and documentation of such request for such Transfer.in an amount not to exceed Five Thousand Dollars ($5,000);
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, transferee or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises to the extent any such change in use is not a Permitted Use. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, transferee or assignee or sublessee of poor reputation, lacking financial qualifications, qualifications (commensurate with the obligations proposed to be undertaken in connection with such a Transfer) or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the “Revenue Code”)); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. The immediately preceding sentence shall not apply if ownership of the Property is transferred or conveyed to a person or entity other than a real estate investment trust or affiliate thereof.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseeTransfer Information;
(c) Tenant shall reimburse Landlord for Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements other costs or overhead expenses incurred by Landlord in connection with the review, processing and documentation of such requestrequest in an amount not to exceed Five Thousand Dollars ($5,000);
(d) If a Transfer Subject to Section 25.8, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The With respect to any Transfer of all or any portion of the Premises, the proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such consent to Transfer (if such Transfer consent is required hereunder) shall be effected on Landlord’s forms, subject to changes by Tenant that are satisfactory to Landlord in its reasonable discretion;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Useviolate Section 2.7;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (if such consent is required hereunder) (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 38.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use use, store, handle, treat, generate in or store release or dispose of from the Premises, together with copies of all documents relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises. Additionally, Tenant including, without limitation: permits; approvals; reports and correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Premises (provided, such installation of tanks shall deliver only be permitted after Landlord has given its written consent to Landlorddo so, which consent may not be unreasonably withheld); and all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or before under the date Premises for the closure of any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such tanks. Neither Tenant nor any such proposed transferee, assignee or sublessee as described is required, however, to provide Landlord with any portion(s) of such documents containing information of a proprietary nature which, in Section 39.2and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and constitute a “Default” hereunder after the lapse of any applicable notice and cure period set forth in Section 24.4(i).
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, transferee or assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, transferee or assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to license (but not sublease) up to an aggregate of up to ten percent (10%) of the rentable square feet of the Premises to individuals or entities (each, a “Business Affiliate”), which license to a Business Affiliate shall be on and subject to all of the following conditions: (a) Tenant shall have a direct contractual business relationship (relating to a primary business of Tenant conducted in the Premises and other than Business Affiliate’s use of the Premises) with each such Business Affiliate and any such Business Affiliate’s use of the Premises shall be directly and primarily related to such business relationships; (b) each such Business Affiliate shall be of a character and reputation consistent with the quality of the Building; (c) each such license shall clearly specify that it is only a contract right and that the Business Affiliate is not a subtenant and has no interest in real property; (d) each such Business Affiliate’s use of the Premises is in a manner consistent with the Permitted Use; (e) no demising walls or separate entrances shall be constructed in the Premises to accommodate any such license; (f) the term of such license shall not exceed six (6) months unless otherwise agreed to in writing by Landlord; (g) the primary motivation for Tenant’s grant of such license is not to provide space to such Business Affiliate; and (h) such Business Affiliate shall pay no rent to Tenant in respect of such license. No such license shall relieve Tenant from any liability under this Lease.
25.9. Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to sublet up to an aggregate of up to thirty-five percent (35%) of the rentable square feet of the Premises to individuals or entities (each, a “Permitted Subtenant”) on and subject to all of the following conditions: (a) the net worth (as determined in accordance with generally accepted accounting principles (“GAAP”) of such Permitted Subtenant is not less than Five Million Dollars ($5,000,000); (b) each such Permitted Subtenant shall be of a character and reputation consistent with the quality of the Building; (c) each such Permitted Subtenant’s use of the Premises is in a manner consistent with the Permitted Use; (d) the term of such sublease shall not exceed four (4) years unless otherwise agreed to in writing by Landlord; and (e) all rent and other compensation paid to Tenant by such Permitted Subtenant shall be subject to Section 25.4(d). No such sublease shall relieve Tenant from any liability under this Lease.
25.10. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, or if a Default occurs and is cured to the satisfaction of Landlord, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Arena Pharmaceuticals Inc), Lease (Arena Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in, a “Transfer”)with, through or under it without Landlord’s prior written like consent, which consent shall not be unreasonably withheld or delayed. Upon any attempted unconsented assignment or sublease, Landlord shall have the right to terminate this Lease. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Any sublease on the Premises executed by Tenant and a third party must terminate when the Term of this Lease expires. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. In the event of any such assignment or sublease of all or any portion of the Premises where the rental or other consideration reserved in the sublease or by the assignment exceeds the rental or prorata portion of the rental, as the case may not unreasonably withhold; providedbe, howeverfor such space reserved in this Lease, that Tenant agrees to pay Landlord monthly, as additional rental, on the Rent Day, the excess of the rental or other consideration reserved in the sublease or assignment over the rental reserved in this Lease applicable to the subleased/assigned space. Notwithstanding the foregoing, Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet to sublease all or any a portion of the Leased Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results (i) an entity resulting from a merger or consolidation of with Tenant; or (ii) any party that acquires entity succeeding to all or substantially all of the business and assets of Tenant; or stock (iii) any direct subsidiary of Tenant (an “Allowable Transfer”)Tenant. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to When Landlord’s consent to a Subject Transfersublease is required, Landlord may require any or all of the following:
shall, within fifteen (a15) business days after Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory submits to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord a written request for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfera sublease, nor which request shall it release identify the proposed subtenant and generally describe the nature of such subtenant’s business and clientele and be accompanied by a copy of the proposed sublease, give Tenant written notice approving or any disapproving of such sublease. If Landlord fails to give Tenant written notice either approving or disapproving of such proposed transfereesublease within such fifteen (15) business day period, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7Landlord shall be deemed to have approved such sublease. Notwithstanding any Transferof the foregoing, Tenant shall remain fully and primarily liable for the payment it is clearly understood that any type of all Rent and other sums due embryonic research or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall associated activities would not be deemed a waiver of any of an approved use in or on the provisions of this Lease or a consent to any TransferPremises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Aastrom Biosciences Inc), Lease Agreement (Aastrom Biosciences Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedIf at any time or from time to time, the Tenant shall not, either voluntarily wishes to assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or to sublet the Premises whole or any part hereof (eachof the Leased Premises, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that the Tenant shall have first offer to surrender this Lease in respect of the right whole or any part of the Leased Premises (the “Subject Area”) which the Tenant wishes so to assign all or any portion sublet. Notice of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent such offer to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer surrender shall be referred given to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but Landlord not more less than ninety (90) days in any event, prior to the date when on which the Tenant desires proposes that the Transfer surrender be effective. The Landlord shall have a period of ten (10) Business Days after such notice is given to be effective (accept or to decline such offer. If the “Assignment Date”)Landlord accepts, then this Lease shall terminate with respect to the Subject Area on the date proposed in such offer. If the Landlord declines such offer or does not respond within the aforesaid time period, the Tenant shall provide be free to assign this Lease or sublet the Subject Area provided that:
(i) the Tenant shall have received or procured a bona fide written notice offer therefor to take an assignment or sublease which is not inconsistent with, and the acceptance of which would not breach, any provision of this Lease (if this Section 11.02 is complied with) and which the Tenant has determined to accept subject to this Section 11.02 being complied with, and
(ii) the Tenant shall have first requested and obtained the consent of the Landlord (to such assignment or sublease. Any request for the “Assignment Notice”) containing Landlord’s consent shall be accompanied by a true copy of such offer and all information (including references) concerning available to the character Tenant, or any additional information requested by the Landlord, as to the responsibility, reputation, financial standing and business of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions subtenant. The consent of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant not be unreasonably withheld provided that, without limitation, the Landlord shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord not be deemed to be unreasonable for declining to unreasonably withholding its consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in if it refuses such consent upon the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event basis that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(aA) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises offer provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of which is less than the rental and other charges due to Landlord payable under this Lease, or
(B) such offer is made by, or the proposed assignment is in favour of any existing tenant of the Development. If such consent is given the Tenant shall pay twenty-five percent (25%) assign or sublet, as the case may be, only upon the terms set out in the offer submitted to the Landlord. The Landlord may require as a condition of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The its consent that the proposed transferee, assignee or sublessee shall subtenant agree that, in with the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make to observe and to perform all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by the obligations of the Tenant under this Lease and the Tenant agrees with the Landlord that:
(iii) in the case of an assignment, if the Tenant is to receive from any assignee, either directly or indirectly, any consideration or premium for the assignment of the Lease, and any such proposed transfereeeither in the form of cash, assignee goods or sublessee services, the Tenant shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent forthwith pay an amount equal to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change consideration to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kiv) A list if the Tenant sublets the Subject Area and receives a rental, consideration or premium in the form of Hazardous Materials cash, goods, services or other consideration from the subtenant which is higher than the rental payable under this Lease (on a per square foot basis) to the Landlord for the Subject Area, the Tenant shall pay any such excess to the Landlord in addition all rentals and other costs payable hereunder. Whether or not the Landlord consents to any request as defined in Section 39.7 below)aforesaid, certified the Tenant shall pay to the Landlord all reasonable costs incurred by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date including legal fees, in considering any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described consent and in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of completing any of the provisions documentation involved in implementing any such assignment or sublease. Any advertisement of this Lease the Leased Premises or a consent portion thereof as being available for assignment, sublease or otherwise without the written approval of the Landlord to any Transferthe form and content of such advertisement is prohibited, which approval shall be granted by the Landlord in its sole discretion.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Office Premises Lease (Pivotal Corp), Office Premises Lease (Pivotal Corp)
Assignment or Subletting. 25.124.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withholdwithhold or delay; providedprovided that, howeverwithout the consent of Landlord, that Tenant shall have the right to may assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets of or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, equity in no event shall Tenant be released from any of its obligations under this LeaseTenant.
25.224.2. In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer; provided that such costs and expenses shall not exceed $2,000.00.
25.324.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a material change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.424.4. As conditions precedent to Landlord’s consent Tenant subleasing or transferring any rights to a Subject Transferthe Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;; provided that such costs and expenses shall not exceed $2,000.00.
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. .. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in material default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for without Landlord’s written consent agreement to the same;
(ji) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kj) A list of Hazardous Materials (as defined in Section 39.7 38.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.238.2.
25.524.5. Any Transfer that is not in compliance with the provisions of this Section 25 24 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.624.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this LeaseLease unless otherwise agreed in writing by Landlord.
25.724.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant, unless otherwise agreed in writing by Landlord. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.824.8. [Intentionally omitted]If Tenant delivers to Landlord an Assignment Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 24.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Assignment Notice, to terminate this Lease as of the date specified in the Assignment Notice as the Assignment Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Assignment Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Assignment Notice as provided in this Section 24.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.924.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Array Biopharma Inc), Lease (Array Biopharma Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease to an entity into which Tenant is merged, with which Tenant is consolidated, or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity’s net worth and liquid assets are equal or stock greater than Tenant’s immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Landlord’s consent shall not be required if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor’s net worth and liquid assets are equal to or greater than Tenant’s immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and (ii) any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, and (iii) whether the proposed assignee or sublessee represents a potential risk of compromise of trade secrets of another tenant of the Project. If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.4, Landlord shall be deemed to have approved the request. As a condition to any assignment Or sublease to which Landlord has given consent, any such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the assignee or sublessee agrees to be bound by all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described covenants and agreements in Section 39.2this Lease.
25.5. 25.5 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, 25.7 If Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets sublet the Premises or any potion part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent. Furthermore, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, any security deposit received from the subtenant, which Landlord shall hold pursuant to the terms of the sublease. The security deposit shall be transferable by Landlord to a successor Landlord and to Landlord’s mortgage lender which is the beneficiary of a deed of trust encumbering the Premises, provided such lender agrees to hold the security deposit pursuant to the terms of the sublease and this Lease.
25.8 Notwithstanding any subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any sublessee of the entirety of the Premises with a recognition and nondisturbance agreement in the form described in Article 35 on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease. Any assignment of the Lease or sublease of the Premises shall provide that the assignee or sublessee shall provide financial statements to Landlord as reasonably required by present and prospective lenders and purchasers of the Project.
25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commissions and legal expenses occasioned by such transfer and payable to third parties.
25.11 Notwithstanding any of the foregoing provisions to the contrary, in the event Tenant desires to assign this Sublease or sublet the entire Premises to a transferee other than to a transferee describe in Section 25.2, Landlord may elect to terminate this Lease by written notice given by Landlord to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3.
Appears in 2 contracts
Sources: Lease (Genelux Corp), Lease (Genelux Corp)
Assignment or Subletting. 25.1. Except as hereinafter providedThe Tenant will not assign, Tenant shall nottransfer, either voluntarily sublet, part with or share possession or set over or permit the Premises to be occupied or used by a licensee or concessionaire or otherwise by any act or deed permit the Premises or any part of them to be assigned, transferred, set over or sublet, whether by operation of Applicable Lawslaw or otherwise, directly (individually and collectively, a “Transfer”) unto any persons, firm, partnership or indirectly sellcorporation whomsoever except with prior consent of the Landlord, hypothecateas set out herein. Notwithstanding the foregoing, assign, pledge, encumber the Tenant shall not assign or otherwise transfer sublet all or part of the Premises to any other tenant in the Building. If the Tenant desires to assign this Lease, Lease or sublet the Premises or any part hereof portion thereof to a named third party (each, a the “TransferTransferee”), without the Tenant shall first provide the Landlord with any information the Landlord may reasonably require, including a true copy of the agreement to assign or sublet (the “Transfer Agreement”); evidence as to the responsibility, reputation, financial standing and business of the proposed transferee; a completed credit check application in the Landlord’s prior written consentform; and if any Leasehold Improvements are contemplated to be undertaken, which consent Landlord may then plans and specifications, including but not unreasonably withhold; providedlimited to, howevermechanical, that Tenant shall have electrical and structural drawings, (collectively the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable TransferTransfer Information”). Any Transfer other than an Allowable Transfer The Tenant shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and give at least thirty (30) days with respect days’ prior written notice to the Landlord of the proposed Transfer and the effective date thereof. Any request for a Transfer may be documented by the Landlord or, at the Landlord’s option, by its solicitors, and the Landlord’s then current standard fee (the “Documentation Fee”), any other Transferlegal costs and any third party costs including, but not more than ninety limited to, architects or consultants fees, (90) days in any eventcollectively, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeTransfer Fee”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord with respect thereto shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced payable by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlorddemand.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease of Office Space (Zymeworks Inc.), Lease of Office Space (Zymeworks Inc.)
Assignment or Subletting. 25.1Tenant may sublet the Premises in whole or in part without Landlord's consent, but the making of any sublease shall not release Tenant from, or otherwise affect in any manner, any of Tenant's obligations under this Lease. Except as hereinafter provided, Tenant shall not, either voluntarily not assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet any interest in this Lease, without the prior, express, and written consent of Landlord, and a consent to an assignment shall not be deemed to be a consent to any subsequent assignment. Landlord's approval of an assignment of this Lease shall not operate to relieve Tenant of its obligations under this Lease. For purposes of this Section 10, by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee is not of a financial strength similar to Tenant as of the date of the Lease, (ii) that the prospective assignee has a poor business reputation, or (iii) that the proposed use of the Premises or any part hereof by such prospective assignee (eachincluding, without limitation, a “Transfer”)use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Premises. Notwithstanding the foregoing provisions, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease without the consent of Landlord, provided that no default by Tenant then exists with respect to Tenant's obligations hereunder, Tenant has paid all rentals and other payments or sublet all charges due to the date thereof and the use or any portion proposed use of the Leased Premises without Landlord’s consent is in full compliance with the terms and provisions hereof, to (a) any corporation that is a parent, subsidiary or affiliate of Tenant; (b) a person, corporation or any party that results from a merger or consolidation of Tenant; or any party that acquires all or other entity to which substantially all of Tenant's assets are transferred; or (c) a person, corporation or other entity to which fifty percent (50%) or more of the assets or capital stock of Tenant is transferred. Within fifteen (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; effective date of any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursublease, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord a copy of the assignment or sublease which shall specifically provide that the value assignee has assumed the obligations and liabilities of Landlord’s interest Tenant under the Lease and that Tenant shall remain liable under the Lease for payment of all amounts due under this Lease shall not be diminished or reduced if unpaid by the proposed Subject Transferassignee. Such evidence shall include, without limitation, evidence respecting In the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation event of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; providedor assigns, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall will not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing amendment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy modification of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Lease made without Landlord's consent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Commercial Lease, Commercial Lease (Palmetto Bancshares Inc)
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenantthereof; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor Permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee agrees to use and occupy the Demised Premises throughout the entire term hereof for the purpose of purposes herein specified and for no other purposes, Tenant shall notin the manner and to substantially the extent now intended, either voluntarily and not to transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Lessor in each instance. Lessee shall seek such consent of Lessor by a written request therefor, setting forth such information as Lessor may deem necessary. Lessor agrees not to withhold consent unreasonably. Consent by Lessor to any assignment of this Lease or to any subletting of the Demised Premises without Landlord’s consent shall not be a waiver of Lessor's rights under this Article as to any parentsubsequent assignment or subletting. Lessor's rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the Lessee from any of Lessee's obligations in this Lease contained, subsidiary nor shall any assignment or affiliate sublease or other transfer of Tenant; this Lease be effective unless the assignee, sublessee or any party that results from a merger transferee shall at the time of such assignment, sublease or consolidation transfer, assume in writing for the benefit of Tenant; Lessor, its successors or any party that acquires all or substantially assigns, all of the assets or stock terms, covenants and conditions of Tenant this Lease thereafter to be performed by Lessee and shall agree in writing to be bound thereby. Should Lessee sublease in accordance with the terms of this Lease, fifty percent (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer 50%) of any increase in rental received by Lessee over the per square foot rental rate which is being paid by Lessee shall be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Lessor, which increase shall be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Office/Warehouse Lease (Lectec Corp /Mn/), Lease Agreement (Surmodics Inc)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), performed without Landlord’s 's prior written consent, which such consent Landlord may not to be unreasonably withhold; providedwithheld, howeverconditioned or delayed: (a) Tenant selling, that Tenant shall have the right to assign all hypothecating, assigning, pledging, encumbering or any portion of its interest under otherwise transferring this Lease or sublet all subletting the Premises or any portion (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange, or transferred to an Affiliated Party (defined below) or otherwise by reason of a Permitted Transfer (defined below)). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than seventy percent (70%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor’s Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual costs and expenses, including, without limitation, reasonable including attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, not to exceed Three Thousand Dollars ($3,000.00);
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the PremisesPremises and amounts of such payments not directly attributable to the value of Tenant’s leasehold interest hereunder) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin material default hereunder in any respect or in default beyond any applicable notice and cure period;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee or assignee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
16.8. So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or otherwise circumventing the remaining terms of this Article 16, Tenant may assign its entire interest under this Lease or sublease all or a portion of the Premises, without the consent of Landlord, to: (a) an affiliate, subsidiary, or parent of Tenant, or (b) a corporation, partnership or other legal entity wholly owned by or under common ownership with Tenant (collectively, an “Affiliated Party”), or (c) to any entity with or into which Tenant or any Affiliated Party may merge or consolidate, or (d) to any entity acquiring substantially all of the assets of or a controlling interests within Tenant, provided that all of the following conditions are satisfied (each such Transfer is referred to herein as a “Permitted Transfer”): (1) Tenant is not in material default under this Lease or in default beyond any applicable notice and cure periods;
Appears in 2 contracts
Sources: Lease Agreement (Innovative Industrial Properties Inc), Purchase and Sale Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall not, either voluntarily not assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or any interest in it and shall not sublet the Premises or any part hereof of it or any right or privilege appurtenant to this Lease or permit any other person (eachthe agents and employees of Tenant excepted) to occupy or use the Premises or any portion of it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may in lieu of granting consent terminate this Lease. A consent to one assignment, subletting, or occupation and use by another person shall not be deemed to be a “Transfer”)consent to any other or further assignment, subletting, or occupation nor a waiver of the provisions of this Section, except as to the specific instance covered by it. Any such assignment, subletting, or occupation without consent shall be void and shall at the option of Landlord terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord.
B. In the event Tenant contemplates an action under Section 26, Paragraph A, Tenant shall give Landlord 30 days’ written notice of Tenant’s intention to sublease or assign this Lease. Such notice shall constitute an offer by Tenant to Landlord to terminate this Lease and the future rights and obligations of the parties under this Lease. Landlord may accept the offer by giving written notice of acceptance to Tenant within 10 days of Landlord’s receipt of Tenant’s notice of intention to sublet or assign. Upon such acceptance, this Lease shall terminate as of the end of the calendar month in which the notice of acceptance is given to Tenant. Tenant shall then surrender the Premises to Landlord and the provisions of this Lease applicable to termination upon expiration of the Term shall apply. Such termination shall not relieve either party from liability for any breach or default occurring prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that to termination.
C. Tenant shall have the right in the event of a merger, consolidation, reorganization, or recapitalization, whether or not Tenant survives as the surviving corporation, to assign all or any portion of its interest under transfer this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2such surviving corporation. In the event Tenant desires to effect a Transfercontemplates making an assignment or transfer as provided in this Section 26, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)Paragraph C, Tenant shall provide written give 30 days’ notice to Landlord (of its intent to make the “Assignment Notice”) containing assignment or transfer and shall furnish to Landlord all pertinent information (including references) concerning as to the character book value of the proposed transfereeassignee. Upon assignment or transfer, as provided in this section, the liability of Tenant shall terminate and Landlord shall look to the assignee or sublessee; for performance under this Lease, provided the Assignment Date; any ownership or commercial relationship between Tenant and assignee agrees in writing to be bound by the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail this Lease as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transferthough an original signatory.
25.3. LandlordD. Except as otherwise expressly provided in this Lease, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease or a consent to any Transferunless Landlord consents.
25.8. [Intentionally omitted]
25.9. If E. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease. Landlord, and appoints Landlord as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
F. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing or prospective Tenant of the Building.
G. Tenant agrees to pay to Landlord the sum of $500 to reimburse Landlord for all expenses, including attorney fees, incurred by Landlord in connection with any requested and reasonably permitted assignment or subleasing. Such sum shall be in addition to any other attorney fees and costs allowed under this Lease.
Appears in 2 contracts
Sources: Lease (Aratana Therapeutics, Inc.), Lease (Aratana Therapeutics, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber or otherwise transfer this Leasemortgage, or encumber this lease, nor sublet or permit the Premises or any part hereof (each, a “Transfer”)thereof to be used by others, without Landlord’s the prior written consentconsent of Landlord, which consent shall not be unreasonably withheld, in each instance. In connection with an assignment, sublease or encumbrance Landlord may require the submittal of detailed financial information about the prospective subtenant or assignee, to be reviewed by Landlord, and may require a guarantee of the obligations of the prospective subtenant or assignee, and may require detailed financial information about the guarantor, to be reviewed by Landlord; and there may be alterations to this lease and alterations to the building which are necessary to consummate the transaction. The Landlord may require Tenant or the prospective assignee or sub-tenant to pay for all alterations to the building, and may require that Landlord perform same. Landlord may charge a reasonable fee not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion exceed $500.00 as part of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentassignment, subsidiary sublease, or affiliate of Tenant; encumbrance. If this lease is assigned, or if the Premises or any party that results part thereof is sublet, or occupied by anyone other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, sub-tenant, or occupant and apply the net amount collected against all rent herein reserved. No such assignment, subletting, occupancy, or collection shall be deemed a merger waiver of this covenant, or consolidation the acceptance of Tenant; the assignee, sub-tenant, or occupant as tenant, or a release of Tenant from further performance by Tenant of the covenants in this lease. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant (or any party that acquires all subsequent tenant) from obtaining the consent in writing of Landlord to any further assignment or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2subletting. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord consents to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character sublease or sublease of the proposed transfereePremises or to an assignment of this Lease, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transfereeamount of rental payable under said sublease or assignment, assignee or sublessee; on a per square foot basis, exceed the Base Rent and Additional Rent payable under this Lease, on a per square foot basis, the consideration and all other material terms and conditions of the proposed Transferexcess rental (that is, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees sublease rental which, on a per square foot basis, exceeds the Base Rent and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to Additional Rent on a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable square foot basis payable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includeLease, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual after first deducting all costs and expensesexpenses that Tenant incurs in connection with such sublease, including, without limitation, reasonable attorneys’ brokerage fees, charges legal fees and disbursements incurred in connection expenses and alteration costs), shall be divided equally between Tenant and Landlord, with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding TenantLandlord’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due share thereof being paid over to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise as Additional Rent due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease Agreement (Monotype Imaging Holdings Inc.), Lease Agreement (Monotype Imaging Holdings Inc.)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees and contractors, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that with which Tenant is consolidated, which acquires all or substantially all of the assets of Tenant, or stock which is an affiliate of Tenant (an each a “Allowable TransferPermitted Transferee”). Any Transfer other than , Landlord’s consent shall not be required, provided that the Permitted Transferee executes, acknowledges and delivers to Landlord an Allowable Transfer shall agreement whereby the Permitted Transferee agrees to be referred to herein as a “Subject Transfer”). Notwithstanding bound by all of the foregoing, covenants and agreements in no event shall Tenant be released from any this Lease arising after the effective date of its obligations under this Leasethe transfer.
25.2. 25.3 In the event Tenant desires to effect assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises to someone other than a TransferPermitted Transferee, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety one hundred eighty (90180) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), . Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to whether or not the proposed assignee or subtenant has the financial strength to satisfy the obligations contemplated by this Lease (with consideration of such transferee, assignee or sublessee (notwithstanding Tenant assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within ten (10) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent any assignment or sublease of the entire Premises to a Transfer to a transfereewhich Landlord has given consent, any such assignee or sublessee of poor reputationmust execute, lacking financial qualifications, seeking a change in acknowledge and deliver to Landlord an agreement whereby the Permitted Use, assignee or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord sublessee agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:
(a) Tenant shall remain fully liable under covenants and agreements in this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatexcept, in the event Landlord gives such proposed transfereecase of a sublease, assignee the payment of Basic Annual Rent).
25.5 Any sale, assignment, hypothecation or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should transfer of this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder subletting of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, be a breach of this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. 25.7 If Tenant sublets the Premises or any potion thereof, part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by TenantTenant by failing to pay Basic Annual Rent and Operating Expenses for two (2) consecutive months, Tenant shall have the right to collect collect, enjoy and dispose of such rent.
25.8 Notwithstanding any subletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any subtenant of the entirety of the Premises with a recognition and non-disturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on terms and conditions materially the same as the ones contained in this Lease.
25.10 In the event Tenant assigns or otherwise transfers this Lease or sublets the Premises to a transferee other than one set forth in Section 25.2, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the initial and any extended term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such transfer and payable to third parties, and after Tenant has recouped any capital costs incurred by Tenant for any improvements to the transferred space after the Term Commencement Date.
Appears in 2 contracts
Sources: Lease (Biocept Inc), Lease (Biocept Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of thereof nor encumber its interest under in this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)unless it first complies with this Article 13. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall subletting not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article 13 shall be void.
25.6. The consent by Landlord 13.02 Provided that (a) any Mortgagee, in its sole and unreviewable discretion, consents to a Transfer shall not relieve Tenant the assignment or proposed transfereesubletting (including, without limitation, the assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfersubtenant, nor shall it release as the case may be), (b) Tenant is not then in breach or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver default of any of the terms or conditions of the Lease, and (c) Landlord gives prior written consent to the proposed assignment or subletting, which consent shall not be unreasonably withheld or delayed, Tenant will be entitled to sublet the Demised Premises or a portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Lease or a consent to any Transfer.
25.8Article 13. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall will have the right to collect withhold its consent if, in Landlord's reasonable judgment, the business of the proposed assignee or subtenant would expose the Demised Premises and/or Building to increased risk of danger or injury, including environmental contamination, or increased economic or financial risks.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such rentassignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("Tenant's Notice") which notice will contain (i) the name, address and financial information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgagee requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time. Within thirty-one (31) days of Landlord's receipt of Tenant's Notice or, within thirty-one (31) days of Landlord's receipt of any additional or supplementary information requested by Landlord, Landlord will advise Tenant as to whether it will (i) consent to such assignment or subletting, (ii) refuse to consent to such assignment or subletting, or (iii) elect to terminate this Lease and the unexpired term hereof (a "Recapture"). In the event Landlord elects to Recapture, Tenant will vacate and surrender the Demised Premises on the date specified by Landlord, but not later than the date set forth in the Tenant Notice upon which the assignment or proposed assignment or sublease was to become effective, which date will not be prior to forty (40) days after receipt by Landlord of Tenant Notice, and upon such vacation and surrender, this Lease will terminate.
Appears in 2 contracts
Sources: Lease Agreement (Windsortech Inc), Lease Agreement (Windsortech Inc)
Assignment or Subletting. 25.1Tenant will not assign, mortgage, pledge, sell, or in any manner transfer this Lease or any estate or interest hereunder, nor merge with or become part of a different entity and will not sublet the Premises or any part or parts thereof, without express written consent of Landlord. Except as hereinafter providedIf Landlord consents, Tenant shall notpay to Landlord, either voluntarily or by operation of Applicable Lawsas Additional Rent, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this and in addition to all other amounts owning to Landlord under the Lease, fifty percent (50%) of all moneys or other consideration received by Tenant from its transferee as consideration for the transferee’s occupancy of the Premises in excess of the amount owned by Tenant to Landlord under this Lease less reasonable amounts Tenant paid (ratably applied) to secure such excess amounts (attorney’s fees, moving costs, lease concessions, tenant improvements, etc.), which Additional Rent will be paid to Landlord as and when received by Tenant. Landlord’s right to assign this Lease is and will remain absolute and unqualified. Notwithstanding the provisions contained in the foregoing paragraph, Tenant may assign this Lease or sublet the Premises or any part hereof (each, a “Transfer”)portion thereof, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of corporation which controls, is controlled by or is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or stock of Tenant Tenant’s business as a going concern (collectively, being an “Allowable TransferTransfer Event”). Any Transfer other than an Allowable Transfer shall be , and any such entity being referred to herein as a “Subject TransferSuccessor Entity”), so long as (a) Tenant and the Successor Entity are jointly and severally and directly liable to Landlord for timely and complete performance of all terms and conditions (including without limitation payment of all Base Rent and Additional Rent) under the Lease; (b) the Successor Entity continues the same use as Tenant and in accordance with the provision of Section 8.1 of the Lease; and (c) both the net worth (assets less liabilities) and the working capital (current assets less current liabilities) of the Successor Entity, as determined in accordance with GAAP, exceed both immediately before and immediately after the Transfer Event the net worth and working capital of the Tenant each at their highest point during the twelve month period immediately preceding the Transfer Event. Notwithstanding At Landlord’s option, the foregoingSuccessor Entity shall enter into a new Lease with Landlord containing the same terms and conditions contained herein. Furthermore, even if the Successor Entity is not related to or affiliated with Tenant, Landlord shall not unreasonably withhold its consent to a proposed transfer or sublet provided the specific conditions outlined in no event shall Tenant be released from any subsections (a), (b) and (c) of its obligations under this Lease.
25.2paragraph are met. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default permitted assignment by Tenant, Tenant shall have will remain liable for the right to collect such rentfaithful performance of all the terms and conditions in this Lease in the event that the assignee will default in the performance of the terms and conditions, or in the payment of the rent required thereby.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Sonic Foundry Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord, in all instances, shall respond to any request for consent within ten (10) business days. If Landlord may does not unreasonably withhold; providedrespond within such period, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)deemed denied. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project unless (a) Tenant notifies Landlord of Tenant’s desire to do so and (b) Landlord fails to notify Tenant within ten (10) days after receipt of such notice that Landlord can accommodate such tenant or potential tenant’s space needs in the Building.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire, if applicable, to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status statements of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, such reimbursement not to exceed the lesser of actual costs or two thousand dollars ($2,000);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises and excluding any consideration received for the value of Tenant’s business or personal property) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction all costs and expenses incurred by Tenantin connection with such transfer, including any reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by or allowed Tenant. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be permitted within the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(1) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Sublease Agreement (Natera, Inc.), Sublease Agreement (Natera, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee covenants and agrees that it will not sell, Tenant shall notassign, sublease, mortgage, pledge or otherwise transfer or encumber (collectively “transfer”) this Lease or any rights, interests or estates created by this Lease or all or any portion of the Leased Premises, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet (a) without having first obtained the Premises or any part hereof written consent of Lessor (each, a “Transfer”which shall not be unreasonably withheld), and (b) in the case of an assignment, without Landlord’s prior written consentfirst obtaining and presenting to Lessor a covenant of assumption by the assignee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right wherein such assignee expressly agrees to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent and with Lessor to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially assume and be bound by all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred covenants, terms, conditions and provisions hereof to herein the same extent as a “Subject Transfer”)if said assignee had been named as the original Lessee. Notwithstanding the foregoing, Lessee may transfer this Lease or any rights, interests or estates created by this Lease to an affiliate of Lessee under common ownership and control of Lessee without prior written consent of Lessor, but in no such event Lessee shall Tenant be released remain liable for the performance of the Lease and, in the case of an assignment, Lessee shall comply with the requirements of Section 8(b) above. Any such transfer shall not relieve Lessee from any of its obligations under to comply with all the covenants, terms, conditions and provisions of this Lease.
25.2, unless otherwise agreed in writing by Lessor. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Lessor consents to any other Transfertransfer, but such consent shall not more than ninety (90) days in relieve Lessee and/or any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or assignee, sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferetc., all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenantfrom securing Lessor’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to written consent to a Transfer to a transfereeany further transfer, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or nor shall any of Landlord’s affiliates such consent be construed as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees consent to reasonably evaluate any proposed transferee’s, assignee’s further transfer or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy as a waiver of any portion of the Premises.
25.4this section or of Lessor’s rights hereunder. As conditions precedent to LandlordA transfer of control of Lessee’s consent to capital stock or ownership interests, either voluntarily or by operation of law, shall constitute a Subject Transfer, Landlord may require any or all “transfer” of the following:
(a) Tenant shall remain fully liable Lease under this Lease during section. “Transfer of Control” as used in the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence foregoing shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
limitation (i) Landlord shall not be bound an outright sale, assignment or transfer of sufficient shares of Lessee’s capital stock to vest 51% or more of Lessee’s capital stock or ownership interests in persons or entities controlled directly or indirectly by any provision persons or entities, some or all of any agreement pertaining to the Transfer, except for Landlordwhom are different than those persons or entities which directly or indirectly control 51% or more of Lessee’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (capital stock as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the PremisesEffective Date, or (ii) a sale, assignment or other transfer of shares of the capital stock or ownership interest in any corporation, partnership or other entity, which, as of the Effective Date, owns, separately or jointly with others, directly or indirectly, 51% or more of Lessee’s capital stock or ownership interests, where such transfer is sufficient to vest 51% or more of such capital stock or ownership interest in persons or entities, some or all of the items relating to Hazardous Materials of whom are different than those persons or entities owning such proposed transferee, assignee shares or sublessee ownership interest as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferEffective Date.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Ramaco Resources, Inc.), Lease (Ramaco Resources, Inc.)
Assignment or Subletting. 25.1. 28.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “"Transfer”"), without Landlord’s 's prior written consent. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all Transfer, upon ten (10) days prior written notice to Landlord but without obtaining Landlord's prior written consent, (a) to a corporation or any portion other entity which is a successor in interest to Tenant by way of its interest under this Lease merger, consolidation or sublet all corporate reorganization, or any portion (b) by the purchase of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interest of Tenant provided that such merger or consolidation or such acquisition or assumption, as the case may be, is not principally for the purpose of transferring this Lease, (c) to any person that as of the date of determination controls, is controlled by or is under common control with Tenant ("Tenant's Affiliate") or (d) to any persons in connection with any secondary offering of the Tenant's stock or in connection with any bona fide financing or capitalization for the benefit of Tenant, and otherwise comply with the requirements of this Lease regarding such Transfer (the foregoing described Transfers, or any one of them, may be referred to as an “Allowable "Exempt Transfer”"); provided, however, that (i) the overall net worth of the resulting tenant is not materially less than the overall net worth of Tenant as of the date of this Lease; (ii) Landlord receives satisfactory evidence of the satisfaction of such net worth requirements set forth in the preceding subsections (i) not less than five (5) business days prior to the date of such Exempt Transfer. Any For purposes of Exempt Transfers, "control" requires both (A) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person (unless such Transfers relate to any corporation whose shares are publicly traded) and (B) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. In no event shall Tenant perform a Transfer other than to or with an Allowable entity that is a tenant at the Project or that is in discussions or negotiations with Landlord where Landlord, in each such case, has space available in the Project for such proposed transferee to lease to such transferee. The assignee of Tenant’s entire interest hereunder in accordance with an Exempt Transfer shall may be referred to herein as a an “Subject TransferAffiliate Assignee.”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 28.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment "Transfer Date”), ") Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information reasonably requested by Landlord (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 28.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s 's performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord's desire to exercise its rights under Section 28.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the "Revenue Code; provided "). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 28.4 As conditions precedent to Landlord’s consent Tenant subleasing the Premises or to Landlord considering a Subject Transferrequest by Tenant to Tenant's transfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(dc) If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever on account of the leasehold interest being transferred (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant; provided, however, Landlord shall not have any right to any sums or other economic consideration resulting from an Exempt Transfer. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ed) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fe) Any Landlord's consent to any such Transfer shall be effected on Landlord’s 's reasonable forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(hf) Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be substantially the same as the Permitted Use;
(ig) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
(h) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable by any Governmental Authority for any Transfer;
(i) Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent to any later Transfer;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.220.2.
25.5. 28.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 28.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s 's consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 28.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, : from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.828.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee for the remainder of the Term of this Lease other than any Exempt Transfer or as provided within Section 28.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.9. 28.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Lease (Mabvax Therapeutics Holdings, Inc.), Lease (Mabvax Therapeutics Holdings, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer or encumber this Lease, nor sublet all or sublet any part of the Premises or any part hereof (each, a “Transfer”), permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consentapproval, which consent Landlord may agrees not unreasonably to withhold; provided. It will not be unreasonable for Landlord to withhold consent if, howeveras reasonably determined by Landlord, the financial responsibility or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business not to be consonant with that Tenant of other tenants in the Building, 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. Tenant’s request for approval shall be in writing and contain the name, address, and description of the business of the proposed assignee or subtenant, its most recent financial statement and other reasonable evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed assignment or subletting. Within ten (10) business days from receipt of such request Landlord shall either: (a) grant or refuse consent. Landlord shall have no recapture right. Each assignee or sublessee of Tenant’s interest 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 right due performance of all terms, covenants, conditions and provisions herein contained on Tenant’s part to assign be observed and performed. No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute the same shall not release assignee from its liability as set forth herein. Notwithstanding anything to the contrary contained in this Section 25, neither (i) an assignment or subletting of all or any portion of its interest under this Lease or sublet all or any a portion of the Premises without Landlord’s consent to any parent(A) an entity which is controlled by, subsidiary controls or affiliate is or under common control with Tenant or an Affiliate of Tenant; , or any party that results from (B) a merger or consolidation purchaser of Tenant; or any party that acquires all or substantially all of the assets or a majority of stock or membership interests of Tenant, or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant through a purchase, merger, consolidation or reorganization of Tenant by or with another entity (whether such acquisition takes the form of an asset sale, a stock sale or a combination thereof), nor (ii) transfer, by operation of law or otherwise, in connection with the merger, consolidation or other reorganization of Tenant or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer hereinafter, such entities, purchasers, and parties shall be referred to herein collectively or individually as a an “Subject TransferAffiliate”), nor (iii) an initial public offering of Tenant’s or an Affiliate of Tenant’s capital stock, shall be subject to Landlord’s consent pursuant to this Section; provided, however, no sublease or assignment to an Affiliate shall release the Tenant named herein from any liability under this Lease. For purposes of this Lease, “control” shall mean the ownership of more than fifty-one percent (51%) of the outstanding equity securities of an entity or management control of such entity. Notwithstanding anything to the foregoingcontrary contained in this Section 25 Tenant may, with written notice to Landlord but without Landlord’s consent, sublease, license or allow the use of a portion of the Premises to an entity that is (a) funded by Tenant or an Affiliate in connection with Tenant’s or the Affiliate’s business, or (b) engaged in a business transaction with Tenant or an Affiliate that requires Tenant or the Affiliate to provide office space, provided that the following conditions are all met: (i) such party and its agents, employees, licensees and invitees must either carry the insurance Tenant is required to carry under this Lease or Tenant’s insurance must provide the coverage to such party as though such party were the primary insured under Tenant’s insurance policy; and (ii) no demising wall shall be installed with respect thereto. In no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable liability under this Lease during in the unexpired Term;
(b) Tenant shall provide case of any of the foregoing assignments. Any consent by Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease hereunder shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status constitute a waiver of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt strict future compliance by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to or a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of terms, covenants, provisions, or conditions in this Lease or a consent to any Transfercontained.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Sublease Agreement, Sublease Agreement (Verrica Pharmaceuticals Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding Ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee or subtenant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than Thirty (30) days prior to the effective date of the proposed assignment or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of $125.00 or One Percent (1%) of the annual current value of this Lease, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than Ten Percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default under the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than Ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Sources: Option for Lease (Florida Coastline Community Group Inc), Option to Lease (Coastal BHC Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all Transfer without Landlord’s prior written consent the Premises or any portion part thereof to any person that as of its interest the date of determination and at all times thereafter directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant (“Tenant’s Affiliate”), provided that Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate (an “Exempt Transfer”) and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth (as of both the day immediately prior and the day immediately after the Exempt Transfer) that is equal to or sublet all or any portion greater than the net worth (as of both the Execution Date and the date of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all Exempt Transfer) of the assets transferring Tenant. For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of Tenant another person and (an “Allowable Transfer”)b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord.
25.229.2. In the event Tenant desires to effect a Transfer (other than an Exempt Transfer), then, at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below21.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 29.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Assignment or Subletting. 25.1. Except as hereinafter providedNotwithstanding any other provisions of this Lease to the contrary, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may covenants and agrees that it will not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all (which term without limitation, shall include the granting of concessions, licenses, and the like) the whole or any portion part of the Demised Premises or mortgage, pledge, or encumber this Lease or any estate or interest therein without in each instance having first received the express prior written consent of Landlord’s consent , and only if an event of default by Tenant shall not have occurred and be continuing. Landlord shall respond to any parent, subsidiary request by Tenant for permission to sublease or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least assign within thirty (30) days with respect to after receipt of written request. In any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as case where Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursubletting, the Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant named herein shall remain fully liable under this Lease during for the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status obligations of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenseshereunder, including, without limitation, reasonable attorneys’ feesthe obligation to pay the rent and all other amounts provided under this Lease. Further, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If event Tenant sublets the whole or a Transfer part of the Demised Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) amount in excess of the rental and other charges due Minimum Rent (or proportionate Minimum Rent applicable to Landlord under this Leasethe space covered by any sublease) payable by Tenant hereunder, Tenant shall pay twenty-five percent (25%) of all [***] of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment amount to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) as Additional Rent. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee 5.4 prohibiting the right of Tenant from full and primary liability under to assign this Lease.
25.7. Notwithstanding any TransferLease or sublet the Demised Premises without Landlord's prior consent shall not, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or however, be applicable to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions an assignment of this Lease by the Tenant to a subsidiary, affiliate or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for controlling corporation of Tenant, provided (and Landlord (it shall be a condition of the validity of such assignment) that such subsidiary, affiliate or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentcontrolling *** Confidential treatment requested.
Appears in 2 contracts
Sources: Lease Agreement (Silicon Entertainment Inc /Ca/), Lease Agreement (Silicon Entertainment Inc /Ca/)
Assignment or Subletting. 25.1. Except as hereinafter provided10.1 Lessee shall not assign this lease, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leaseany interest herein, or sublet or allow any other person, firm or corporation to use or occupy the Premises Premises, or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Lessor, which consent Landlord may will not be unreasonably withhold; provided, however, that Tenant withheld. Any consent by Lessor under the preceding sentence shall have the right not be deemed to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s be a consent to any parentsubsequent event within the scope of the preceding sentence. An assignment of stock, subsidiary membership units, general partnership or affiliate of Tenant; other ownership interest in Lessee, or any party that results from a merger merger, consolidation or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer corporate reorganization shall be referred to herein as a “Subject Transfer”)deemed an assignment within the meaning of this Paragraph. Notwithstanding Lessee will provide Lessor notice of such assignment of stock that does not require Lessor’s approval. Notwithstanding, Lessee and Assignee shall be liable for the foregoing, in no event shall Tenant be released from any performance of its obligations under all terms and conditions of this Lease.
25.210.2 If Lessee shall make any assignment of this lease or shall make any subletting hereunder in any way not authorized by the terms hereof, the acceptance by Lessor of any rent or other Amount Due from any person claiming as assignee, sublessee or otherwise shall not be construed as a recognition of or consent to such assignment or subletting or as a waiver of the right of Lessor thereafter to collect any rent from lessee, it being agreed that Lessor may at any time accept rent or any other Amount Due under this Lease from any person offering to pay the same without thereby acknowledging the person so paying as a Lessee in place of Lessee hereinabove named, and without releasing said Lessee from the obligations of this lease, but the same shall be taken to be a payment on account by Lessee.
10.3 In the case of any assignment consented to or permitted by Lessor hereunder, at the time of such assignment Lessee shall pay Lessor as consideration therefor, as Additional Rent, an amount equal to all sums and other consideration paid to Lessee by the assignee for or by reason of such assignment (including any sum paid for the sale, rental or use of Lessee’s property) less the reasonable brokerage commissions and legal fees, if any actually paid by Lessee to unaffiliated third parties in connection with such assignment. In the event Tenant desires case of any subletting consented to effect a Transfer, thenor permitted by Lessor hereunder, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect the time of such subletting, Lessee shall pay Lessor as consideration therefore, as additional rent, an amount equal to any rents, additional charges or other Transfer, but not more than ninety (90) days in any event, prior consideration payable under the sublease to Lessee by the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information subtenant (including references) concerning any sums paid for the character of the proposed transfereesale, assignee rental or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of LandlordLessee’s affiliates as a Real Estate Investment Trust under the Code; provided that (aproperty) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) which are in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in Base Rent during the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use term of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined sublease in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy respect of the Premisessubleased space, all of less the items relating reasonable brokerage commissions retrofitting costs and legal fees, if any, actually paid by Lessee to Hazardous Materials of such proposed transferee, assignee or sublessee as described unaffiliated third parties in Section 39.2.
25.5. Any Transfer that is not in compliance connection with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parent, subsidiary or affiliate of Tenant; or any party person that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all as of the assets date of determination and at all times thereafter directly, or stock indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 25.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 25.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Cytrx Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner ------------------------- transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or which consent shall not be unreasonably withheld, and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in, a “Transfer”)with, through or under it without Landlord’s prior written like consent, which consent shall not be unreasonably withheld. Upon any attempted unconsented assignment or sublease for which consent is required hereunder, Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all terminate this Lease. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any portion other person. Any sublease of its interest under the Premises executed by Tenant and a third party must terminate when the Term of this Lease expires. The acceptance of rent from an assignee, subtenant or sublet occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. In the event of any such assignment or sublease of all or any portion of the Premises without where the rental or other consideration reserved in the sublease or by the assignment exceeds the rental or prorata portion of the rental, as the case may be, for such space reserved in this Lease, Tenant agrees to pay Landlord monthly, as additional rental, on the Rent Day, fifty percent (50%) the excess (after netting out Tenant's reasonable expenses for tenant improvements, brokerage fees, attorneys' fees and other reasonable out of pocket expenses incurred in connection with such assignment or sublease) of the rental or other consideration reserved in the sublease or assignment that is from time to time received by Tenant over the rental reserved in this Lease applicable to the subleased/assigned space. Nothwithstanding the foregoing, Tenant shall not be required to obtain Landlord’s 's consent to any parent, subsidiary in the event of an an assignment of this Lease or affiliate subletting of Tenant; all or any party that results from a merger portion of the Premises to (i) an entity into which Tenant is merged or consolidation of Tenant; consolidated or any party that acquires to which all or substantially all of the Tenant's assets are sold or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usetransferred, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (aii) Landlord agrees to reasonably evaluate any proposed transferee’san entity which controls, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt is controlled by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (includingis under common control with, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Dominos Pizza Government Services Division Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, SECTION 11.1 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof thereof nor encumber its interest in this Lease unless it first complies with this Article 11.
SECTION 11.2 Provided that (eacha) Tenant is not then in breach or default of any of the terms or conditions of the Lease after expiration of any applicable grace periods, and (b) Landlord gives prior written consent to the proposed assignment or subletting which consent shall not unreasonably withheld or delayed, Tenant will be entitled to sublet the Demised Premises or a “Transfer”portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Article 11. Landlord will have the reasonable right to withhold its consent if Tenant's proposal for such subletting or assignment would violate any restrictive covenant or exclusive uses granted to any other tenant(s) in the Building or Property or if there is a proposed substantial deviation from the general character and condition of the Building or Property.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such assignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("TENANT'S NOTICE") which notice will contain (i) the name, address and financial 13 information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of Rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgages requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time.
(b) Except for the prospective sublease or assignment by Tenant to (i) an affiliate, (ii) New Jersey State Medical Underwriters, Inc., or its affiliates or (iii) for a total of 5,000 r.s.f. or less of the Demised Premises during this Lease Term, Landlord has the right by giving Tenant notice of its election to do so ("LANDLORD'S NOTICE") within fourteen (14) days after the later of receipt of Tenant's Notice or receipt of the requested additional or supplementary information, if applicable, either (i) to terminate this Lease as to all or that portion of the Demised Premises which is the subject of the proposed assignment or sublease if for all or substantially all of the balance of the term, or (ii) to require that Tenant shall pay to Landlord fifty (50%) percent of (x) the net amount (i.e. after deducting the reasonable broker's commissions, if any, and other reasonable costs and expenses incurred in connection with obtaining the assignment or sublease, as the case may be including without limitation concessions and workletter) of any consideration received by Tenant for the assignment or sublease and (y) the amount by which the Base Rent, Operating Expenses and other additional rent to be paid under the sublease or assignment exceed the Base Rent, Operating Expenses and other additional rent to be paid under this Lease (herein the "Rent Surcharge"). Such amounts will be paid to Landlord as and when they are received by Tenant. In the event of an election by Landlord to terminate this Lease as provided in (i) above, Landlord shall first give Tenant a three (3) day period within which to provide Landlord written notice of Tenant's withdrawal of the requested assignment; and thereafter in the absence of such withdrawal such termination shall become effective on the commencement date of the proposed sublease or the effective date of the proposed assignment, as the case may be, but in no event earlier than thirty (30) days after the giving of Landlord's Notice, and Base Rent and all additional rent payable by Tenant will be so adjusted and apportioned as of the date of such termination. Notwithstanding the above, with respect to affiliates of New Jersey State Medical Underwriters, Inc. Landlord reserves its right to require that Tenant pay to Landlord the Rent Surcharge as provided for in this subsection. (c) Notwithstanding the foregoing, Tenant's right to make an assignment or sublease and the effectiveness of any assignment or sublease is conditional upon (i) there being no uncured default under the Lease as of the effective date of the assignment or sublease, (ii) Tenant's delivery to Landlord, within three (3) days after their execution, of a duplicate original of the assignment or sublease and, in the event of an assignment, an agreement reasonably acceptable to Landlord wherein the assignee assumes and agrees to keep, observe and perform all of the covenants, conditions and obligations of Tenant under the Lease, and (iii) upon request by Landlord and as additional rent, Tenant will pay Landlord a processing fee of Five Hundred ($500.00) Dollars or such greater amount as is reasonable under the circumstances for document review and/or preparation in connection with the proposed transaction.
SECTION 11.4 If this Lease is assigned, or if the Demised Premises or any part thereof is sublet or otherwise occupied by anyone other than Tenant, after default by Tenant, Landlord may collect rent from the assignee, subtenant or occupant and apply the net amount collected to the amounts due hereunder, but no such assignment, subletting, occupancy or collection will be deemed a waiver of this covenant, an acceptance of the assignee, subtenant or occupant as tenant or a release of Tenant from the further performance of the terms, covenants and conditions of this Lease.
SECTION 11.5 Notwithstanding any assignment, sublease or other occupancy with or without Landlord's consent, Tenant will remain primarily liable on this Lease unless expressly agreed to by Landlord to the contrary, in writing. Any violation of any provision of this Lease, whether by act or omission, by any assignee, subtenant or occupant, will be deemed a violation of such provision by Tenant, it being the intention of the parties that Tenant will be liable to Landlord for any and all acts and omissions of any and all assignees, sublenants or other occupants of the Demised Premises.
SECTION 11.6 For purposes of this Article 11, if Tenant is a corporation or partnership, any dissolution, merger, consolidation or other reorganization of such corporation or partnership, or the sale or other transfer or disposition of a "controlling interest" in the corporate shares or partnership interests of Tenant, as the case may be, (whether such sale, transfer or other disposition occurs at one time or at intervals so that, in the aggregate, such sale, transfer or other disposition of a "controlling interest" shall have occurred), without Landlord’s prior written consentwill be deemed to constitute an assignment of this Lease. For the purposes of this Article 11, the term "controlling interest" means (a) as to a tenant which consent Landlord may not unreasonably withhold; providedis a corporation the ownership of shares possessing and having the right to exercise more than fifty (50%) percent of the total combined voting power of all classes of shares issued, howeveroutstanding and entitled to vote for the election of directors, that (whether direct ownership or indirect ownership through ownership of shares possessing and having the right to exercise more than fifty (50%) percent of the total combined voting power of all classes of shares of another corporation or corporations), and (b) as to a tenant which is a partnership, more than fifty (50%) percent of partnership interest of the general partners of such partnership (whether direct ownership or indirect ownership through control of a corporate general partner). Tenant shall have the right right, without Landlord's consent but with prior reasonable notice to Landlord, to assign all or any portion of its interest under this Lease or sublet all sublease the Demised Premises: (a) if the sublease or any portion of the Premises without Landlord’s consent assignment involves less than 5,000 r.s.f. or (b) to any parent, subsidiary or affiliate corporation of Tenant; , or any party that results from a merger or consolidation of Tenant; or corporation into which Tenant may merge, for any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant then remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require unexpired Lease Term or any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; option period provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
: (i) the proposed assignee is financially qualified or is an otherwise satisfactory credit risk; (ii) the assignee corporation provides Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), with financial statements certified by an office or individual of the proposed transferee, assignee demonstrating net assets equal to or sublessee greater than Tenant's; (iii) such assignee has sufficient experience and continues to be true and correct, that operate the proposed transferee, assignee or sublessee intends to use or store business conducted in the Premises. Additionally, premises in the same manner and for the same use as Tenant shall deliver pursuant to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6the Lease. The consent An affiliate is defined as any corporation which controls or is controlled by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee the parent corporation of Tenant from full which shall then control the affiliate and primary liability under this Leaseany corporation which is a member with Tenant in a relationship of joint venture, partnership or other form of business association.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, SECTION 11.1 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of thereof nor encumber its interest under in this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under unless it first complies with this LeaseArticle 11.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided SECTION 11.2 Provided that (a) Landlord agrees Mortgagee, in its sole and unreviewable discretion, consents to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever subletting (including, without limitation, the assignee or subtenant, as the case may be), (b) Tenant is not then in breach or default of any of the terms or conditions of the Lease, and (c) Landlord gives prior written consent to the proposed assignment or subletting, Tenant will be entitled to sublet the Demised Premises or a premium portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Article 11. Landlord will have the right to withhold its consent if, in Landlord's sole and unreviewable judgment, the business of the proposed assignee or subtenant would expose the Demised Premises and/or Building and/or the occupants of the Building to increased risk of danger or injury, including environmental contamination.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such assignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("TENANT'S NOTICE") which notice will contain (i) the name, address and financial information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgagee requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time.
(b) Landlord has the right by giving Tenant notice of its election to do so ("LANDLORD'S NOTICE") within fourteen (14) days after the later of receipt of Tenant's Notice or receipt of the requested additional or supplementary information, if applicable, either (i) to terminate this Lease as to all or that portion of the Demised Premises which is the subject of the proposed assignment or sublease, or (ii) to require as a condition to its consent to an assignment or sublease that Tenant shall pay to Landlord fifty (50%) percent of the net amount (i.e. after deducting the reasonable broker's commissions, if any, and other reasonable costs and expenses incurred in connection with obtaining the assignment or sublease, as the case may be) of (x) any consideration received by Tenant for the assignment or sublease and (y) the amount by which the Base Rent, Operating Expenses and other additional rent to be paid under the sublease or lump sum payment for an assignmentassignment exceed the Base Rent, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental Operating Expenses and other charges due additional rent to Landlord be paid under this Lease. Such amounts will be paid to Landlord as and when they are received by Tenant. In the event of an election by Landlord to terminate this Lease as provided in (i) above, such termination shall become effective on the commencement date of the proposed sublease or the effective date of the proposed assignment, as the case may be, but in no event earlier than thirty (30) days after the giving of Landlord's Notice, and Base Rent and all additional rent payable by Tenant shall pay twenty-five percent (25%) will be so adjusted and apportioned as of all the date of such excess termination.
(c) Notwithstanding the foregoing, Tenant's right to make an assignment or sublease and the effectiveness of any assignment or sublease is conditional upon (i) there being no uncured default under the Lease as of the effective date of the assignment or sublease, (ii) Tenant's delivery to Landlord, prior to deductions for any transaction costs incurred by Tenantin recordable form and within three (3) days after their execution, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant a duplicate original of such cash payment;
(e) The proposed transferee, assignee the assignment or sublessee shall agree thatsublease and, in the event of an assignment, an agreement reasonably acceptable to Landlord gives wherein the assignee assumes and agrees to keep, observe and perform all of the covenants, conditions and obligations of Tenant under the Lease, and (iii) upon request by Landlord and as additional rent, Tenant will pay Landlord a processing fee of Five Hundred ($500.00) Dollars for document review and/or preparation in connection with the proposed transaction.
SECTION 11.4 If this Lease is assigned, or if the Demised Premises or any part thereof is sublet or otherwise occupied by anyone other than Tenant, after default by Tenant, Landlord may collect rent from the assignee, subtenant or occupant and apply the net amount collected to the amounts due hereunder, but no such proposed transfereeassignment, assignee subletting, occupancy or sublessee notice that collection will be deemed a waiver of this covenant, an acceptance of the assignee, subtenant or occupant as tenant or a release of Tenant is from the further performance of the terms, covenants and conditions of this Lease.
SECTION 11.5 Notwithstanding any assignment, sublease or other occupancy, with or without Landlord's consent, Tenant will remain primarily liable on this Lease unless expressly agreed to by Landlord to the contrary, in Default under writing. Any violation of any provision of this Lease, whether by act or omission, by any assignee, subtenant or occupant, will be deemed a violation of such proposed transfereeprovision by Tenant, assignee or sublessee shall thereafter make all payments otherwise due it being the intention of the parties that Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn liable to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy and all acts and omissions of any and all written instruments evidencing assignees, subtenants or relating other occupants of the Demised Premises.
SECTION 11.6 Without limiting any of the provision of this Article 11, if pursuant to the Transfer; and
Federal Bankruptcy Code or any similar law having the same general purpose, (k) A list of Hazardous Materials (as defined in Section 39.7 belowherein the "Code"), certified Tenant is permitted to assign its interest in this Lease notwithstanding the restrictions set forth above, Landlord will be entitled to assurance of future performance by an assignee expressly permitted under such Code which will be deemed to mean, at a minimum, the proposed transferee, assignee deposit of cash or sublessee cash equivalent security in an amount equal to the sum of one (1) year's Base Rent plus an amount equal to the additional rent for the calendar year preceding the year in which such assignment is intended to become effective. Such security will be true and correct, that held by Landlord for the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy balance of the Premisesterm, all of the items relating to Hazardous Materials of such proposed transfereewithout interest, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and security for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until be applied in the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentmanner specified in Article 17 below.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign this Lease in whole or in part, either voluntarily nor sublet all or any part of the Premises, without the prior written consent of Landlord. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This proh bition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer law. If this LeaseLease is assigned by Tenant, or sublet if the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all thereof are sublet or occupied by any portion of its interest under this Lease person or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer entity other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any collect rent from the assignee, subtenant or all occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver on the part of Landlord, or the acceptance of the following:
(a) assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained unless expressly made in writing by Landlord. Irrespective of any assignment or sublease, Tenant shall remain fully liable under this Lease during and shall not be released from performing any of the unexpired Term;
(b) terms, covenants and conditions of this Lease. It is agreed that Landlord will not be acting unreasonably in refusing to consent to an assignment or sublease if, in Landlord's opinion, the quality of the business operation of the proposed assignee or subtenant is not equal to that of the Tenant, or such assignee or subtenant may adversely affect the business of the other tenants or the tenant mix at the Site, or if the net worth of such assignee or subtenant is less than that of Tenant, or for any other reason deemed aufficient in Landlord's judgment. If Tenant shall provide Landlord assigns this Lease or sublets the Premises to a third party who is not in any way affiliated or connected with evidence reasonably satisfactory Tenant by way of a merger, reorganization, consolidation or otherwise, any rent or additional rent paid to tenant in addition to the rent payable to Landlord that the value of Landlord’s interest under as set forth in this Lease shall not be diminished paid by Tenant to Landlord as additional rent. If the Tenant is a corporation, or reduced by is an unincorporated association or partnership, the proposed Subject Transfer. Such evidence shall includetransfer, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee assignment or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant hypothecation of any consideration of any kind whatsoever (includingstock or interest in such corporation, without limitation, a premium rental for a sublease association or lump sum payment for an assignment, but excluding Tenant’s reasonable costs partnership in marketing and subleasing the Premises) aggregate in excess of forty-nine (49%) percent shall be deemed an assignment within the rental meaning and other charges due provisions of this Section. For any request to sublet Eight Hundred (800) square feet (gross) or more: Tenant shall pay Landlord under this Leasea nonrefundable processing fee of Five Hundred Dollars ($500.00) for each requested assignment or sublease to cover Landlord's costs. This fee shall accompany any request for assignment or sublease. In addition, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by TenantLandlord in connection with reviewing a request to consent to an assignment or sub-lease, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees all of Landlord's attorney's and free rentaccountant's fees. If said consideration consists of cash paid For any request to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
sublet less than Eight Hundred (e800) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
square feet (f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(igross) Landlord shall not be bound by any provision of any agreement pertaining to waive the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store fees noted in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.preceding paragraph
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the prior written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s 's consent, or if required, the consent of Landlord's lender. Landlord's consent shall not be unreasonably withheld or delayed. In no event may Tenant assign, sublet or otherwise transfer this Lease or any interest in this Lease at any time while in default hereunder. One such consent by Landlord will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Neither the consent to any assignment or subletting nor the acceptance of rent from an assignee, subtenant or occupancy will constitute a release of Tenant from the further performance of the obligations of the Tenant contained in this Lease.
13.02 Notwithstanding the above, Tenant may assign or sublet this Lease with prior written notice and a copy of such assignment or sublease to Landlord, but without Landlord's prior written consent, which consent Landlord may not unreasonably withhold; providedto Tenant's parent, howeversubsidiary, that Tenant shall have the right to assign all successor, or affiliated corporation, or any portion of its interest under this Lease corporation or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that entity which acquires all or substantially all of the assets or issued and outstanding shares of capital stock of Tenant, provided the parent, subsidiary, successor, affiliated corporation, or entity which acquires the assets or shares of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, is at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between as economically viable as Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other that there is no material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. Premises without Landlord's prior written consent.
13.03 In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, of any assignment or sublease to occur, Tenant would no longer occupy of all or any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent Premises to a Subject Transfer, Landlord may require any non-affiliated entity where the rental or all other consideration reserved in the sublease or by the assignment exceeds the rental or pro-rata portion of the following:
(a) rental, as the case may be, for such space reserved in this Lease, Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide agrees to pay Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includemonthly, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt byas additional rent, on behalf of or on account of Tenant of any consideration of any kind whatsoever (includingthe Rent Day, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and or other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, reserved in the event Landlord gives such proposed transferee, assignee sublease or sublessee notice that Tenant is assignment over the rental reserved in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated applicable to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordthe subleased/assigned space.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) 13.04 Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentassign this Lease at any time.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, A. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without requests Landlord’s consent to any parent, subsidiary an assignment of the Lease or affiliate subletting of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all a portion of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Premises, it shall be referred submit to herein as a “Subject Transfer”). Notwithstanding the foregoingLandlord, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In writing, (i) the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease name and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character legal composition of the proposed transferee, assignee or sublessee; subtenant, (ii) the Assignment Date; any ownership or commercial relationship between Tenant and use to which the proposed transferee, assignee or sublessee; and subtenant intends to put the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease and of any related transaction between Tenant and the proposed assignee or subtenant; (iv) information related to the experience, all in integrity and financial resources of the proposed assignee or subtenant; (v) such detail publicly disclosed information as Landlord shall may reasonably require. Tenant shall reimburse Landlord request to explain the transaction; (vi) reimbursement for all reasonable attorneys’ fees and other reasonable out-of-out of pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s including actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with evaluating the reviewrequest and preparing any related documentation, processing which shall not exceed Two Thousand Dollars ($2,000.00); and documentation of such request;
(dvii) If a Transfer the nature and character of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess business of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordsubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining B. Landlord’s consent to any further Subject Transfer, nor such proposed assignment or subletting shall it release Tenant not be unreasonably withheld. Landlord shall be considered to have reasonably denied its consent to a proposed assignment or any proposed transferee, sublease if:
(i) The assignee or sublessee does not meet the minimum net worth and creditworthiness standards utilized at the Building for tenants of a similar size and use;
(ii) Tenant has not given Landlord thirty (30) days’ prior written notice of such assignment or sublease, which notice shall include all information and documentation reasonably required to satisfy the above conditions;
(iii) Tenant is in default beyond any applicable cure period at the time of the assignment or sublease (but at such time as any default is cured, the assignment or sublease may proceed); and
(iv) The assignee or sublessee fails to furnish Landlord at least ten (10) days prior to the effective date of the assignment or sublease, a written assignment instrument in which assignee or sublessee agrees to assume and be bound by all of the conditions, obligations and agreements of Tenant from full and primary liability under contained in this Lease.
25.7C. This Paragraph shall not apply in the case of an assignment or sublease by Tenant to a corporation which is the parent or subsidiary of or is controlled by Tenant, or to a corporation, resulting from any reorganization or merger to which Tenant or its parent or any of its subsidiaries Or any corporation controlled by it is a party.
D. In no event will Tenant be released from its obligations under the Lease. Notwithstanding any TransferIf consent to an assignment or sublease is given, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns pay to Landlord, as security for Additional Rent fifty percent (50%) of all amounts received from the assignee or subtenant in excess of the amounts otherwise payable by Tenant to Landlord with respect to the space involved calculated on a per square foot basis, less Tenant’s obligations under this Lease, cost of commissions and legal fees. Profits on an assignment or sublease by Tenant shall be computed after deduction of all rent from expenses incurred by Tenant in connection with any such subletting, sublease or assignment including (a) brokerage; (b) reasonable legal fees; (c) construction costs; (4d) market financial concessions granted to subtenant; (e) depreciation of any laboratory equipment owned by Tenant and appoints Landlord as assignee used by subtenant and attorney-in-fact for Tenant, and Landlord (f) any other costs reasonably incurred by Tenant applicable to the sublease or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under assignment.
E. Notwithstanding anything to the contrary in this Lease; provided that, until the occurrence of a Default by TenantSection 24, Tenant shall have be prohibited from subleasing any portion of the right Premises to collect such rent(i) an existing tenant of the Building or (ii) a prospective tenant of the Building with whom Landlord or its representatives are actively negotiating, as evidenced by a current term sheet or written proposal between the prospective tenant and Landlord.
Appears in 1 contract
Sources: Lease (Nanosphere Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant A. Subtenant shall not, either voluntarily without the prior written consent of Sublandlord and Prime Landlord, (i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Subtenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Subtenant. Transfers of fifty percent (50%) or more of the stock or other ownership interests in Subtenant, a “Transfer”)whether in one transaction or in the aggregate, without Landlord’s shall be deemed to be an assignment of this Sublease for which prior written consent, which consent Landlord may not unreasonably withhold; provided, notice to Sublandlord must be provided (however, that Tenant Sublandlord's consent shall not be required therefor). Notwithstanding the foregoing, Subtenant shall have the right same rights with respect to "Permitted Transfers" that Sublandlord has under the Prime Lease, with the Prime Lease definition of "Permitted Transfers" (and the provisions of Section 13.4 of the Prime Lease) incorporated herein by reference with references to Prime Landlord referring to Sublandlord and references to Sublandlord referring to Subtenant. If Subtenant desires to assign its interest in this Sublease, or further sublet all or part of the Premises, then Subtenant shall submit a written request to Sublandlord accompanied by such financial and other information concerning the proposed assignee or subtenant, and the terms of the assignment or further sublease, as Sublandlord may reasonably request. Except for Permitted Transfers, any portion such request made by Subtenant to assign this Sublease or enter into a further sublease of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent shall be deemed an offer by Subtenant which shall be irrevocable for a period of thirty (30) days to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially surrender all of the assets or stock of Tenant (an “Allowable Transfer”)Premises to Sublandlord. Any Transfer other than an Allowable Transfer If such offer is accepted, such surrender shall be referred effective as of the date that the proposed assignment or further sublease would have commenced. Subtenant shall quit and surrender the Premises as if this Sublease by its terms expired on such date, and the Base Rent and Additional Rent under Section 8 shall be apportioned as of such date. If Subtenant's offer to herein as surrender the Premises in connection with a “Subject Transfer”)proposed assignment or further sublease of all or a portion of the Premises is not accepted by Sublandlord within thirty (30) days, or if Sublandlord declines such offer, then Sublandlord's consent to such an assignment of this Sublease or such a further sublease of the Premises shall not be unreasonably withheld. Notwithstanding the foregoing, Sublandlord shall not in any event be obligated to consent to any such proposed assignment or further subletting unless:
(a) the proposed assignee or sub-subtenant is of a financial standing and is engaged in a business and the Premises will be used in a manner which is in keeping with the then standards of the Building;
(b) the proposed assignee or sub-subtenant is a reputable party;
(c) there shall be no event shall Tenant be released from default by Subtenant under any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transferterms, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms covenants and conditions of this Sublease at the time that Sublandlord's consent to any such assignment or sub-subletting is requested and on the effective date of the assignment or the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable outsub-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.sublease;
25.3. Landlord, in determining whether consent should be given to a (d) the proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee sub-subtenant shall not be (notwithstanding Tenant remaining liable i) a government or any subdivision or agency thereof, (ii) a school college, university or educational institution of any type, whether for Tenant’s performance)profit or non-profit, and any change (iii) a direct competitor of Sublandlord (iv) an employment or recruitment agency, or (v) a telephone solicitation business;
(e) such proposed further subletting will result in use that such transferee, assignee or sublessee proposes to make in the use there being no more than two occupants of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, ; and
(f) the proposed assignee or sublessee sub-subtenant is not a tenant or occupant of poor reputation, lacking financial qualifications, seeking the Building or a change person with whom Sublandlord or Prime Landlord is negotiating with or has negotiated with for the leasing or subleasing of any space in the Permitted Use, Building. If Sublandlord consents to any assignment of this Sublease or jeopardizing directly further subletting of all or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises, Sublandlord shall request the consent of Prime Landlord and deliver to Prime Landlord any information that Subtenant submits in connection with its proposal to assign or sublet. Any cost of obtaining Prime Landlord's consent shall be borne by Subtenant.
25.4. As conditions precedent B. No assignment or further subletting shall relieve Subtenant from Subtenant's obligations and agreements hereunder and Subtenant shall continue to Landlord’s be liable as a principal and not as a guarantor or surety to the same extent as though no assignment or subletting had been made.
C. The consent of Sublandlord or Prime Landlord to an assignment or a Subject Transfersubletting shall not relieve Subtenant from its obligation to obtain the express consent in writing of Sublandlord and Prime Landlord to any other assignment or subletting.
D. If Subtenant's interest in this Sublease is assigned, Landlord or if the Premises or any part hereof is sublet or occupied by anyone other than Subtenant, Sublandlord may require any collect rent from the assignee, subtenant or occupant and apply the net amount collected to the Base Rent and all Additional Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of the following:provisions of this Section 12 or of any default hereunder or the acceptance of the assignee, subtenant or occupant as Subtenant, or a release of any of the covenants, conditions, terms and provisions on the part of Subtenant to be performed or observed.
E. Subtenant shall pay to Sublandlord, as and when received by Subtenant, an amount or amounts equal to fifty percent (a50%) Tenant of: (i) any rent or other consideration due to Subtenant by any sub-subtenant which is in excess of the Rent then being paid by Subtenant to Sublandlord pursuant to the terms of this Sublease, and (ii) any other profit or gain realized by Subtenant from any such assignment or sub-subletting; all sums payable hereunder by Subtenant shall remain fully liable under be paid to Sublandlord as Additional Rent immediately when due and, if requested by Sublandlord, Subtenant shall promptly enter into a written agreement with Sublandlord setting forth the amount of Additional Rent due to Sublandlord pursuant to this Lease during the unexpired Term;
(bSection 12(E). The provisions of this Section 12(E) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not apply to Permitted Transfers.
F. Subtenant shall reimburse Sublandlord for any expenses that may be diminished or reduced incurred by Sublandlord in connection with the proposed Subject Transfer. Such evidence shall includeassignment or sub-sublease, including without limitation, evidence respecting limitation the relevant business experience and financial responsibility and status costs of making investigations as to the acceptability of a proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs sub-subtenant and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements legal expenses incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant granting of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written requested consent to the same;assignment or sub-sublease, and indemnify Sublandlord and Prime Landlord with respect to any claims made by any broker or finder in connection with the proposed assignment or sub-sublease.
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating G. The Extension Option set forth in Section 38 is personal to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by Subtenant named herein and is not assignable to the proposed transfereesub-subtenant or assignee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord other than transferees pursuant to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Permitted Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease (Epocrates Inc)
Assignment or Subletting. 25.1A. Assignment or Subletting by Tenant. Except as hereinafter providedUpon the prior written consent of ---------------------------------- Landlord, which shall not be unreasonably withheld or delayed, Tenant shall not, either voluntarily may assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet sublease the Premises or any part hereof thereof or mortgage, pledge or hypothecate its leasehold interest (eachcollectively, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”"transfer"). Notwithstanding the foregoingprevious sentence, in no event shall Tenant be released may transfer this Lease without Landlord's consent to any person which is the parent or subsidiary of or controls or is controlled by Tenant, or to a person resulting from any reorganization or merger to which Tenant or its parent or any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord subsidiaries or any of Landlord’s affiliates as person controlled by it is a Real Estate Investment Trust under the Code; party, provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were transferee expressly assumes the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion obligations of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease. Any attempt to transfer this Lease without Landlord's consent, where such consent is required, shall be void. Tenant shall notify Landlord in writing of any proposed transfer requiring Landlord's consent, and any Landlord shall have ten (10) business days following receipt of such notice and financial statements of the proposed transferee, assignee transferee to disapprove of such transfer or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord's consent to such Transfer transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default deemed given. Notwithstanding any transfer by Tenant or Imminent Default hereunder of any consent which Tenant has been given notice may be granted by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver remain liable for all sums and obligations due hereunder, unless Landlord agrees in writing to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of release Tenant from such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5liability. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent Consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant particular transfer shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transferother or subsequent transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or permit a Transfer by ▇▇▇▇▇▇, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without Landlord▇▇▇▇▇▇▇▇’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that conditioned or delayed. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant’s interest under this Lease or sublet in the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any Transfer by Tenant, Tenant shall not be relieved of its obligations under this Lease and Tenant shall remain liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no Transfer by ▇▇▇▇▇▇ had been made, unless specifically provided to the contrary in Landlord’s prior written consent. The acceptance of rent by Landlord from any person other than Tenant shall not be deemed to be a waiver by Landlord of the provisions of this Section or of any other provision of this Lease and any consent by Landlord to a Transfer by Tenant shall not be deemed a consent to any parentsubsequent Transfer by ▇▇▇▇▇▇. In giving or withholding its consent to a proposed Transfer by ▇▇▇▇▇▇, subsidiary Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant with other tenants of the Building. Notwithstanding the foregoing, Tenant may assign this Lease or affiliate sublet any or all of its leasehold interest in the Demised Premises to an affiliate, subsidiary, or parent corporation of Tenant; or any party that results (ii) resulting entity from a merger or consolidation of involving Tenant; or any party that acquires (iii) an entity purchasing all or substantially all of the assets of Tenant, in each case without Landlord’s consent, provided that Tenant gives written notice to Landlord with a copy of the assignment or stock sublease and the assignee or sublessee agrees in writing with Landlord to be bound by the terms and conditions of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer the Lease; provided further that no such notice or consent shall be referred to herein as a “Subject Transfer”)required in connection with the transfer of any voting stock or interests of Tenant. Notwithstanding the foregoingDespite any assignment or sublease, in no event shall Tenant will not be released from any relieved of its obligations under this Lease.
25.2, and ▇▇▇▇▇▇ remains liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no assignment or sublease by ▇▇▇▇▇▇ had been made. Tenant covenants and agrees that in the event Landlord consents to a sublease by Tenant, Tenant and Tenant’s Subtenant shall enter into the form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to an assignment, Tenant and Tenant’s assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect or Tenant’s transferee requests any changes or revisions to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Leaseagreement, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
within ten (e10) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred days after demand by Landlord, except to credit such payment against those due the reasonable costs and expenses of Landlord in connection with any request by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the a Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2including attorneys’ fees.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Insmed Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant a) The LESSEE shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateneither transfer, assign, pledgenor sublet the Lease or any interest therein or any property on the Leased Premises, encumber or otherwise transfer grant any interest, privilege or license whatsoever in connection with this Lease without the prior written consent of the GOVERNMENT. Such consent shall not be unreasonable withheld or delayed.
b) Any sublease granted by ▇▇▇▇▇▇ shall contain a copy of this Lease as an attachment and be consistent with the terms and conditions of this Lease and shall terminate immediately upon the expiration or any earlier termination of ths Lease, without any liability on the part of the GOVERNMENT to LESSEE or any SBLESSEE, except as specifically provided in this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant . No sublease shall have the right to assign all or any portion relieve LESSEE of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations hereunder. Under any sublease made with or without consent of the GOVERNMENT, the SUBLESSEE shall be deemed to have assumed all of the obligations of the LESSEE under this Lease.
25.2c) LESSEE shall submit to the GOVERNMENT for its prior written consent, a copy of each sublease LESSEE proposes to execute. In Such consent may include a requirement that LESSEE negotiate the event Tenant desires sublease to effect conform to the provisions of this Lease. Consent to the sublease shall not be taken or construed to diminish or enlarge any of the rights or obligations of either of the parties to this Lease. Should a Transferconflict arise between the provisions of this Lease and a provision of the sublease, thenthe provisions of this Lease shall take precedence. Upon its execution, at least twenty (20a copy of each sublease shall be immediately furnished to the GOVERNMENT.
d) days All requests for subleases will require review by the appropriate GOVERNMENT agencies. Any costs associated with respect to a sublease and at least thirty (30) days with respect to any other Transferthe modification of the Lease, including but not more than ninety (90) days in any eventlimited to studies and environmental reviews, prior will be at no cost to the date when Tenant desires GOVERNMENT.
e) Subleases may be authorized only by written modification to the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character Lease. Request for modification will include a copy of the proposed transferee, assignee draft sublease or sublessee; contract between the Assignment Date; any ownership or commercial relationship between Tenant LESSEE and the proposed transfereeSUBLESSEE, assignee and detailed information on equipment and operation requirements.
f) The sublease or sublessee; and contract will include a provision that upon expiration or earlier termination of this Lease, the consideration and GOVERNMENT is under no obligation to grant access to the Leased Premises to any additional entity except for removal of equipment. Provision will also include a statement that the GOVERNMENT will not be required to compensate such additional entity for any loss incurred as a result of expiration or termination of the Lease. Whenever a provision of this Lease imposes a requirement or limitation on the LESSEE in its use of the Leased Premises, that provision shall be understood to impose the identical requirement or limitation on the SUBLESSEE.
g) Any sublease will be subject to all other material terms and conditions of the proposed TransferLease, including all in such detail as Landlord shall reasonably requirenecessary technical studies and approvals. Tenant shall reimburse Landlord Any sublease requested by the LESSEE will not be considered approved until appropriately reviewed and authorized by modification to the original Lease. The SUBLESSEE will be responsible for all reasonable attorneys’ fees submitting drawings, specifications, and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenantsite surveys to the GOVERNMENT for review and approval. The rent adjustment to be paid to the GOVERNMENT will be based on 50 percent of the actual Lease consideration between the LESSEE and the SUBLESSEE, including any applicable utilities between the LESSEE and the SUBLESSEE, or 50 percent of the GVOERNMENT’s request Estimate of Fair Market Rental Value for such Transfer.
25.3current market prices. Landlord, in determining whether consent should All requests from potential subtenants shall be given processed by the LESSEE with due diligence. The LESSEE shall be responsible to a proposed Subject Transfer, may give consideration to notify the financial strength GOVERNMENT of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable any requests for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in subleasing on the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Lease Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease for Agricultural Purposes
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or without the prior written consent of Landlord, and the Mortgagee (if required by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, any mortgage which may encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”Property), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease Agreement, or sublet all sublet, or encumber the Leased Premises in whole or in part, or permit any portion other person or entity to occupy or use same (such consent not to be unreasonably withheld). No attempted assignment or subletting, whether with the appropriate consent(s) or in violation of this Section 21, shall relieve Tenant from liability for payment of rent or other sums due hereunder, or from being bound by any of the Premises without Landlord’s consent terms, conditions, covenants and agreements of this Lease Agreement. Any subletting or assignment by Tenant shall be subject to and conditioned upon the following: (i) Tenant shall not be in default under any parent, subsidiary or affiliate of Tenantthe terms of this Lease Agreement; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially (ii) Tenant shall pay to Landlord all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from amounts paid by any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) rentals in excess of the rental rent payable hereunder which are paid under any Sublease and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jiii) Tenant shall deliver to Landlord one a fully executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy counterpart of the Premises, all written assignment or sublease. Acceptance of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee rent from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease Agreement or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises assignment of this Lease Agreement or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such the subletting, and appoints encumbrance or use or occupancy by another of the Leased Premises. In the event that Landlord as assignee and attorney-in-fact for Tenantand/or any Mortgagee consent(s) to any proposed assignment, and Landlord (subletting, encumbrance, or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence granting of a Default by Tenantright of use or occupancy, such consent shall not be deemed to be a consent to any other or further assignment, subletting, encumbrance or granting of a right of use or occupancy. Landlord agrees to attempt in good faith to mitigate its damages in the event of a Tenant default hereunder, but Landlord shall not be deemed to have failed to attempt to mitigate such damages if Landlord leases other space in the right Building, or in any other building, prior to collect such rentattempting to relet the Leased Premises.
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease to an entity into which Tenant is merged, with which Tenant is consolidated, or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity's net worth and liquid assets are equal or stock greater than Tenant's immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Landlord's consent shall not be required if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”"ASSIGNMENT DATE"), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”"ASSIGNMENT NOTICE") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor's net worth and liquid assets are equal to or greater than Tenant's immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), (ii) any use which such successor proposes to make of the Premises, and any change in use that such transferee, (iii) whether the proposed assignee or sublessee proposes to make in the use represents a potential risk of compromise of trade secrets of another tenant of the PremisesProject. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.4, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent. Furthermore, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, any security deposit received from the subtenant, which Landlord shall hold pursuant to the terms of the sublease. The security deposit shall be transferable by Landlord to a successor Landlord and to Landlord's mortgage lender which is the beneficiary of a deed of trust encumbering the Premises, provided such lender agrees to hold the security deposit pursuant to the terms of the sublease and this Lease.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.825.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord's sole option, in the event of the termination of this Lease. [Intentionally omitted]Landlord and any lender shall upon Tenant's request provide any sublessee of the entirety of the Premises with a recognition and nondisturbance agreement in the form described in Article 35 on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease. Any assignment of the Lease or sublease of the Premises shall provide that the assignee or sublessee shall provide financial statements to Landlord as reasonably required by present and prospective lenders and purchasers of the Project.
25.9. If 25.10 In the event Tenant assigns, hypothecates or otherwise transfer this Lease or sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns shall pay to Landlord, as security for Tenant’s obligations Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, all rent from after tenant has recouped any reasonable commissions and legal expenses occasioned by such sublettingtransfer and payable to third parties.
25.11 Notwithstanding any of the foregoing provisions to the contrary, in the event Tenant desires to assign this Sublease or sublet the entire Premises to a transferee other than to a transferee describe in Section 25.2, Landlord may elect to terminate this Lease by written notice given by Landlord to Tenant within fifteen (15) days following receipt of the Assignment Notice and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations the information required under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentSection 25.3.
Appears in 1 contract
Assignment or Subletting. 25.1. (a) Except as hereinafter providedprovided in Section 7(d) below, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the no right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without the prior written consent of Landlord’s , which consent to any parentshall not be unreasonably withheld, subsidiary delayed or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)conditioned. Notwithstanding the foregoing, Landlord's consent shall not be withheld provided that Tenant is not in no event default beyond applicable notice and cure periods and that the assignee has a net worth of at least the greater of Tenant's net worth at the time of such assignment or $18,000,000, and assignee has in the past three (3) years operated a restaurant with gross receipts in excess of $2,000,000. Except for an assignment to Section 7(d), the Percentage Rent after assignment shall Tenant not be released from any of its obligations under this Leaseless than the average Percentage Rent paid during the preceding two (2) years.
25.2. In the event (b) Except as provided in Section 7(d) below, if Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assign this Lease or sublessee; the Assignment Date; any ownership sublet all or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4, Tenant shall give Landlord written notice of Tenant's desire to do so at least sixty (60) days prior to the effective date thereof. As conditions precedent At such time, Tenant shall also submit to Landlord’s consent Landlord with the notice such financial statements and other information to a Subject Transfer, Landlord may require any or all show the then-current net worth and business experience of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;. Landlord shall have ten (10) days from the receipt of Tenant's notice to notify Tenant whether it consents to the proposed assignment or sublease.
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with In the review, processing and documentation event of such request;
(d) If a Transfer an assignment of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twentyremain liable for the performance by the assignee-five percent (25%) in-possession of all of such excess to LandlordTenant's obligations hereunder, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord in the event that Tenant's assignee or any subsequent assignee shall not be bound by any provision of any agreement pertaining have a net worth equal to the Transfergreater of Tenant's net worth at the date of the assignment or Eighteen Million Dollars ($18,000,000.00) (determined as of the end of the most recent fiscal year of such assignee immediately preceding such assignment, except unless more current figures are available), and (ii) there has not been an Event of Default by the assignee for Landlord’s written consent to a period of two (2) years after the same;
(j) date of such assignment, then Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined intervening successors in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 interest shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released and discharged from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any TransferIf the foregoing condition to the release of Tenant is not satisfied at the date of assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance the obligations of Rent or any other sum due hereunder, or Tenant hereunder until such time as the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of assignee has satisfied the provisions of this Lease or a consent to any Transferabove-referenced conditions.
25.8. [Intentionally omitted]
25.9. If Tenant sublets (d) Notwithstanding any provision to the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under contrary contained in this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right without Landlord's consent to collect such rent.assign or transfer this Lease or sublease the Premises to any entity which is owned by or closely affiliated with the Tenant, to a franchisee or licensee of Tenant, to any subsidiary corporation of Tenant, to Tenant's parent corporation, or to any entity succeeding to substantially all of the assets of Tenant as a result of a consolidation, merger or
Appears in 1 contract
Sources: Lease (Silver Diner Inc /De/)
Assignment or Subletting. 25.1SECTION 1. Except as hereinafter providedLessee shall not assign, Tenant transfer, mortgage or pledge this Lease or grant a security interest in Lessee's rights hereunder, or sublease (which term shall notbe deemed to include the granting of concessions and licenses and the like) or permit anyone other than Lessee to occupy all or any part of the demised premises or suffer or permit this Lease or the leasehold interest hereby created or any other rights arising under this Lease to be assigned, either voluntarily transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of Applicable Lawslaw, directly unless, in each instance (i) the prior written consent of Lessor thereto shall have been obtained, which may be withheld in Lessor's sole discretion, (ii) any defaults then existing with respect to the obligations of Lessee under this Lease shall have been cured, (iii) the rental rate of any such sublease is equal to or indirectly sellgreater than the rental rate under this Lease for the period of this Lease corresponding to the term of the sublease, hypothecateand (iv) in the case of a proposed assignment, assignsublease or occupancy by another person or entity, pledgethe proposed assignee, encumber or otherwise transfer this Leasesublessee, or sublet occupant is qualified to do business in Massachusetts and has a sufficient financial net worth to satisfy the obligations of Lessee hereunder, and such assignee, sublessee, or occupant executes and delivers to Lessor an agreement satisfactory to Lessor by which such assignee, sublessee or occupant shall be bound by and shall assume all the obligations of Lessee under this Lease relating to the portion or all of the Premises acquired by such assignee, sublessee or any part hereof (eachoccupant. Notwithstanding anything to the contrary contained herein, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant Lessee shall have the right to assign all or any portion of its interest in this Lease to an entity which holds the controlling interest in Lessee or of which Lessee holds the controlling interest, provided that (i) any defaults then existing with respect to the obligations of Lessee under this Lease or sublet all or any portion shall have been cured, and (ii) the proposed assignee is qualified to do business in Massachusetts and has a financial net worth at least equal to that of Lessee as of the Premises without Landlord’s consent to any parent, subsidiary or affiliate date of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all this Lease and as of the assets or stock date of Tenant (such proposed assignment, and such assignee executes and delivers to Lessor an “Allowable Transfer”). Any Transfer other than an Allowable Transfer agreement satisfactory to Lessor by which such assignee shall be referred to herein as a “Subject Transfer”). Notwithstanding bound by and shall assume all the foregoing, in no event shall Tenant be released from any obligations of its obligations Lessee under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (American Science & Engineering Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedTenant agrees to use and occupy the Demised Premises throughout the entire term hereof for the purpose herein specified and for no other purposes, in the manner and to substantially the extent now intended, and, except for any sublease of a portion of the Demised Premises to Enteromedics or Integ/Lifescan, Tenant shall not, either voluntarily agrees not to transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Landlord in each instance, which consent will not be unreasonably withheld. Tenant shall seek such consent of Landlord by a written request therefor, setting forth such information as Landlord may deem necessary. Consent by Landlord to any assignment of this Lease or to any subletting of the Demised Premises without shall not be a waiver of Landlord’s consent right under this Article as to any parent, subsidiary subsequent assignment or affiliate subletting. Landlord’s rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the Tenant from any of Tenant; ’s obligations in this Lease contained, nor shall any assignment or any party that results from a merger sublease or consolidation other transfer of Tenant; this Lease be effective unless the assignee, subtenant or any party that acquires all transferee shall at the time of such assignment, sublease or substantially transfer, assume in writing for the benefit of Landlord, its successors or assigns, all of the assets terms, covenants, and conditions of this Lease thereafter to be performed by Landlord and shall agree in writing to be bound thereby. Except for any sublease to Enteromedics or stock Integ/Lifescan (for which Tenant is not responsible to share with Landlord any rents received from said subtenants), should Tenant sublease in accordance with the terms of this Lease, fifty percent (50%) of any increase in rental received by Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer over the per square foot rental rate which is being paid by Tenant shall be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Landlord, which increase shall be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Landlord under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1A. Tenant may not assign this Lease in whole or in part, nor sublet all or any part of the Premises, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Except as hereinafter providedIn all circumstances of assignment or subletting, the assignee or Sub-Tenant shall notassume in writing the obligations of Tenant hereunder (in the case of a subletting, either voluntarily or by operation of Applicable Lawssuch assumption to relate only to the premises sublet) and the existing Tenant and each subsequent assignee, directly or indirectly sellSub-Tenant and guarantor hereunder (if any) and each subsequent assignee, hypothecate, assign, pledge, encumber or otherwise transfer Sub-Tenant and guarantor shall remain liable under this Lease, . Consent to any particular assignment or subletting shall not be deemed consent to any further or subsequent assignment or subletting.
B. If Tenant shall assign this Lease or sublet the Premises and at any time the rent per square foot to be received by Tenant pursuant to such assignment or any part hereof (eachsubletting is in excess of the then applicable rent per square foot hereunder, the Landlord and Tenant shall share the entire amount of such excess on a “Transfer”)50/50 basis, without Landlord’s prior written consentless Tenant's costs in arranging and obtaining approvals for such assignment or subletting, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer excess shall be referred due and payable from time to herein as a “Subject Transfer”). Notwithstanding time by Tenant promptly upon receipt by Tenant of payment of rent by the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2assignee or Sub-Tenant. In the event Tenant desires addition, Landlord shall be entitled to effect a Transfer, then, at least twenty receive fifty (2050&) days with respect to a sublease and at least thirty (30) days with respect to percent of any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease differential or lump sum payment for or payment in lieu of rent paid to Tenant on account of an assignmentassignment or subletting. Anything to the contrary notwithstanding, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay if less than twenty-five percent (25%) of the aggregate premises is sublet or assigned, the Landlord shall not terminate this lease under Section 13 (D). Once greater than twenty-five percent (25%) of the aggregate premises is sublet or assigned, the Landlord shall share, as set forth above, in all of such excess the rental differential for premises sublet or assigned.
C. If Tenant wishes to Landlordassign this Lease or sublet to any party, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment Tenant first shall give written notice to Landlord shall be made upon receipt by Tenant of such cash payment;
intention (e) The "Tenant's Notice"), specifying the name of the proposed transferee, assignee or sublessee sublessee, the name of and character of its business, the terms of the proposed assignment or sublease, and shall agree thatprovide Landlord with such other information as Landlord reasonably requests including financial statements in certified form.
D. Landlord may, within thirty (30) days after its receipt of Tenant's Notice, by notice to Tenant ("Landlord's Notice"), either consent to or reject the proposal, or Landlord at its option, may terminate this Lease (if, in connection with a sublease of less than the entire Premises, only to the extent of the premises sublet) and enter into a lease directly with the proposed Sub-Tenant as of a date set forth in Landlord's Notice, such date of termination having the same effect as if that date were the original expiration date of this Lease, with all rents being apportioned and adjusted as of such date of termination (and thereafter adjusted on the basis of the remaining square footage, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence case of a Default by Tenant, Tenant shall have sublease of less than the right to collect such rententire Premises).
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Subleased Premises or any part hereof thereof; or (eachiv) permit the occupancy of the Subleased Premises or any part thereof by anyone other than Tenant. Landlord's consent to an assignment of this Sublease or a further sublease of the Subleased Premises shall not be unreasonably withheld provided that all of the following criteria are met:
(i) The proposed assignee or subtenant or occupant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with reasonable proof thereof;
(ii) The form of the proposed sublease or instrument of assignment or occupancy shall be reasonably satisfactory to Landlord;
(iii) Tenant complies with all requirements applicable to the proposed assignment or sublease as set forth in the Prime Lease and obtains Prime Landlord's consent thereto; and
(iv) Tenant shall give notice of a “Transfer”)requested transfer to Landlord, which notice shall be accompanied by (a) a conformed or photostatic copy of the proposed assignment or sublease, the effective or commencement date of which shall be at least 60 days after the giving of such notice, (b) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, (c) current financial information with respect to the proposed assignee or subtenant, including, without Landlord’s limitation, its most recent financial report and (d) such other information as Landlord may reasonably request. Notwithstanding the foregoing, provided Tenant gives Landlord fifteen (15) days prior written consentnotice and includes with such notice a copy of the written approval of Prime Landlord with respect to same, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right be entitled to assign all or any portion of its interest under this Lease Sublease or sublet all or any portion the Subleased Premises to an entity ("Controlled Tenant") (i) resulting from the merger of the Premises without Landlord’s consent to any parentoriginally named Tenant with, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires acquisition (including all or substantially all of the assets assets) by or stock of, another company, provided such Controlled Tenant shall have a net worth not less than the tangible net worth of Tenant as of the date of this Lease or (ii) any company that is and remains throughout the Sublease Term an “Allowable Transfer”)affiliate of Tenant. Any Transfer other than As used in the immediately preceding sentence, an Allowable Transfer affiliate is a company that controls Tenant, is controlled by Tenant or which is controlled by a company that likewise controls Tenant. In connection with any such assignment, Tenant shall cause the Controlled Tenant to execute and deliver to Landlord an agreement whereby the Controlled Tenant agrees to be bound by all the covenants and agreements in this Sublease which Tenant has agreed to keep, observe or perform, and whereby the Controlled Tenant agrees that the provisions of this paragraph shall be referred binding upon it as if it were the original Tenant hereunder. Together with its required notice to herein as Landlord regarding the proposed transfer to a “Subject Transfer”)Controlled Tenant, Tenant shall provide Landlord with supporting documentation confirming to Landlord's reasonable satisfaction that the transferee is, in fact, a Controlled Tenant. Notwithstanding the foregoing, in no event shall the Tenant be released from any of its liability for the obligations under this Lease.
25.2. In the event Tenant desires to effect Sublease upon a Transfer, then, at least twenty (20) days with respect transfer to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Controlled Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter providedotherwise permitted by Tenant in the Prime Lease, Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Demised Premises or any part hereof thereof; or (each, iv) permit the occupancy of the Demised Premises or any part thereof by anyone other than Tenant without the prior written consent of Landlord. Landlord's consent to an assignment of this Sublease or a “Transfer”), further sublease of the Demised Premises shall not be unreasonably withheld or delayed.
A. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not as a guarantor or surety to the same extent as though no assignment or subletting had been made.
B. This prohibition against certain assignments or subletting without Landlord’s prior 's written consentconsent shall be construed to include prohibition against any assignment or subletting by operation of law, which legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. It is understood that Prime Landlord's consent Landlord may not unreasonably withhold; providedunder the Prime Lease shall also be required in connection with any such assignment, however, that sublease or transfer. Tenant shall have provide any notice required by the right Prime Lease to assign all Landlord and Prime Landlord.
C. The consent by Landlord to any assignment, transfer, or subletting to any portion party shall not be construed as a waiver or release of its interest Tenant under the terms of any covenant or obligation under this Lease Sublease, nor shall the collection or sublet all acceptance of Rent and/or Additional Rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant with respect to any portion covenant or obligation contained in this Sublease, nor shall any such assignment, transfer or subletting be construed to relieve Tenant from obtaining the consent in writing of the Premises without Landlord’s Landlord to any further assignment, transfer or subletting.
D. If Landlord shall give its consent to any parentassignment of this Sublease or to any sublease, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingshall, in no event shall consideration thereof, pay to the Landlord, as Additional Rent, an amount equal to one hundred percent (100%) of all sums and other consideration paid to Tenant be released from any by the assignee or sublessee for or by reason of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least such assignment or sublet within thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to after the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced same has been paid by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Tenant.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease (Partsbase Com Inc)
Assignment or Subletting. 25.11. Except as hereinafter provided, Tenant shall will not, either voluntarily or by operation of Applicable Laws, directly or indirectly sellindirectly, hypothecatevoluntarily or involuntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and will not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that the authorized representatives of Tenant shall have excepted) to occupy or use the right to assign all Premises or any portion thereof (collectively "assign") without first receiving the written consent of its interest under Landlord. Landlord agrees not to unreasonably withhold such consent, but may in lieu of granting such consent terminate this Lease or sublet exercise its other rights as hereinafter provided. Any such assignment without Landlord's consent will be void and will, at the option of Landlord, constitute a default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one assignment will not be deemed to be a consent to any other or further assignment. This Lease and any interest in it will not be assignable as to the interest of Tenant by operation of law without the prior written consent of Landlord.
2. If Tenant contemplates an action under Subparagraph A, Tenant will give Landlord forty-five (45) days' notice thereof, designating the terms proposed and, if a sublease, the term thereof and space proposed to be sublet. Tenant will also provide a current financial statement of any proposed assignee and any further information which Landlord may reasonably request . Landlord may, upon notice to Tenant within thirty (30) days after receipt of Tenant's notice of intention to assign, (i) assign from Tenant any portion of the Premises without Landlord’s consent proposed by Tenant to any parentbe assigned, subsidiary or affiliate for the term for which such portion is proposed to be assigned, but at the same Rent as Tenant is required to pay to Landlord under this Lease for the same space, computed on a pro rata share of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all rentable square footage basis, (ii) terminate this Lease as it pertains to the portion of the assets or stock of Premises so proposed by Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective assigned, (the “Assignment Date”)iii) approve Tenant's proposal to assign, Tenant shall provide subject to Landlord's subsequent written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character approval of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship specific agreement between Tenant and the proposed transfereeassignee, assignee or sublessee; and the consideration and all other material terms and conditions (iv) terminate this Lease in its entirety if, after said subleasing or assignment, Tenant will have then subleased or assigned more than 25% of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use original square footage of the Premises. In no event shall Landlord be deemed Upon acceptance of the offer to be unreasonable for declining terminate this Lease as it pertains to consent the portion of the Premises Tenant seeks to a Transfer assign or upon acceptance of the offer to a transfereeterminate this Lease in its entirety, assignee this Lease (in its entirety or sublessee as it pertains to said portion, as the case may be) will terminate as of poor reputation, lacking financial qualifications, seeking a change the end of the calendar month in which such notice of acceptance is given to Tenant. Tenant must then vacate and surrender all or such portion of the Permitted Use, Premises and the provisions of this Lease applicable to termination upon expiration of the Term will apply to all or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee termination will not relieve Tenant from liability for any breach or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection default with the review, processing and documentation of respect to all or such request;
(d) If a Transfer portion of the Premises provides for occurring prior to termination.
3. For purposes of this paragraph, the receipt byfollowing events will be deemed an assignment of this Lease or a sublease of the Premises, on behalf as appropriate: (i) the issuance of an equity interest (whether a stock or on account partnership interest or otherwise) to any person or group of Tenant related persons, in a single transaction or a series of any consideration related or unrelated transactions such that, following such issuance, such person or group will have control of any kind whatsoever Tenant; or (ii) a transfer of control in a single transaction or a series of related or unrelated transactions (including, without limitation, a premium rental for a sublease by consolidation, merger, or lump sum payment for an assignmentreorganization), but excluding Tenant’s reasonable costs in marketing and subleasing except that the Premises) in excess transfer of the rental and outstanding stock of any corporate Tenant by persons or parties other charges due to Landlord under this Leasethan "insiders" within the meaning of the Securities Exchange Act of 1934, Tenant shall pay twentyas amended, through any recognized national or international securities exchange or through the "over-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall the-counter" market will not be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, included in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder determination of which Tenant whether control has been given notice by Landlord.
(h) Such proposed transfereetransferred. For purposes of this paragraph, assignee or sublessee’s use "control" will mean ownership of not less than 50% of the Premises shall voting stock of a corporation or of not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy less than 50% of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee legal or sublessee as described equitable interest in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transferbusiness entity.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Office Lease (Tenera Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised Premises or any part hereof (eachhereof, a “Transfer”)or permit or suffer the Demises Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent may be withheld in Landlord's reasonable discretion.
25.2 If Tenant is a corporation, the shares of which are not actively traded upon a stock exchange or in the over-the-counter market, a transfer or series of transfers whereby twenty-five percent (25%) or more of the issued and outstanding shares of such corporation are or the voting control is transferred (but excepting transfers upon deaths of individual shareholders) from a person or persons or entity or entities which were owners thereof at time of execution of this Lease to persons or entities who were not owners of shares of the corporation at time of execution of this Lease shall be deemed an assignment of this Lease requiring the consent of Landlord may not unreasonably withhold; provided, however, that as provided in Section 25.1 above.
25.3 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant, provided that the assignee first executes, acknowledge and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease 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 by Landlord) of Tenant immediately prior to the assignment (an “Allowable Transfer”or as of the date hereof, if greater). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the , then Landlord, upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.4 In the event Tenant desires to effect a Transferassign, thensublease, at least twenty (20) days with respect to a sublease and hypothecate or otherwise transfer this Lease or sublet the Demised Premises, then at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord ("the “Assignment Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all also tender to Landlord, reasonable attorneys’ fees and other reasonable out-of-pocket costs ' fees, actually incurred by Landlord Landlord, not to exceed five hundred dollars ($500) in reviewing Tenant’s Tenants request for such Transferassignment.
25.3. Landlord, 25.5 Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Demised Premises, and such other factors as Landlord, in its sole discretion, may consider. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualifications, or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesuse.
25.4. 25.6 As conditions precedent to Landlord’s consent Landlord considering a request by Tenant to a Subject TransferTenant's transfer of rights or sharing of the Premises, Landlord may require require, without limitation, any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Termterm hereof;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseethird party concerned;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, 's reasonable attorneys’ fees, charges and disbursements ' fees incurred in connection with the review, processing and documentation of such request;, not to exceed five hundred dollars ($500); 27
(d) If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without but not by way of limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all any rent paid by the assignee or sublessee in excess of such excess Rent payable by Tenant under this Lease, after deducting therefrom the actual out of pocket costs to LandlordTenant to effectuate the assignment or sublease, prior to deductions for including, without limitation, the unamortized costs of any transaction costs incurred by alterations installed in the Demised Premises at Tenant's expense, including marketing expenses, tenant improvement allowances, alterations, cash concessionsand any attorneys' fees, brokerage or leasing commissions, attorneys’ fees redecorating and free rentremodeling costs in connection with such proposed assignment or subletting. If said consideration consists of cash paid to Tenant, said payment to Landlord shall be made upon receipt by Tenant of such said cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, Written agreement from any third party concerned that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee third party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, however that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such transfer and consent to such Transfer shall be effected on Landlord’s formsforms reasonably approved by Landlord as to form and substance;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such third party's proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the Permitted Usesame as Tenant's permitted use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to Tenant's transfer of rights or sharing of the Transfer, except for Landlord’s written consent to the samePremises;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to Tenant's transfer of rights or sharing of the TransferPremises; and
(k) A list of Hazardous Materials Material (as defined in Section 39.7 41.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Demised Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Demised Premises, all of the items relating to Hazardous Materials Material of such proposed transferee, assignee or sublessee as described in Section 39.241.1.1 below.
25.5. 25.7 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Demised Premises that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease, pursuant to Article 24 hereof.
25.6. 25.8 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Demised Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, assignment or subletting nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this the Lease.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting, assignment or other transfer of the Demised Premises.
25.8. [Intentionally omitted]
25.9. 25.10 If Tenant sublets shall sublet the Demised Premises or any potion thereofpart, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, subletting of all or a part of the Demised Premises and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Expansion Lease (Senomyx Inc)
Assignment or Subletting. 25.113.01 Tenant shall not sublet or assign the Premises or permit the Premises to be used by any person other than the Tenant or employees or associates of the Tenant without the prior written consent of Landlord which consent shall not be unreasonably witheld. Except as hereinafter providedIn the event Landlord consents to an assignment or subletting, Tenant shall notremain fully liable for the remaining term as principal, either voluntarily and not as guarantor or by operation surety, for the payment of Applicable LawsRent as well as the performance of all conditions and covenants of this Lease for which Tenant is now obligated, directly even if Landlord accepts Rent from the assignee or indirectly sell, hypothecate, assign, pledge, encumber subtenant or otherwise transfer this Lease, or sublet the Premises or in any part hereof (each, a “Transfer”), without other manner deals with them.
13.02 In order for Tenant to obtain Landlord’s prior written 's consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right give Landlord prompt written notice of its intention to assign all or any portion of its interest under this Lease or sublet all the Premises, which notice shall include the proposed assignment or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer documents which are to be effective executed and which shall contain detailed information concerning: (1) the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”name(s) containing information (including references) concerning the character of the proposed transfereeassignee or sublessee (and if a private corporation, the names and percentage ownership of all stockholders); (2) the most recent financial statement of the proposed assignee or sublessee; (3) a description of the Assignment Date; any ownership or commercial relationship between Tenant and nature of the business of the proposed transferee, assignee or sublessee; and the consideration and (4) a description of all other material terms and conditions of the proposed Transfer, all in such detail as assignment or sublease. It is understood and agreed that Landlord shall reasonably require. be entitled to receive all monies paid to Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, sublessee or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and Rent due Landlord from Tenant.
13.03 Any lawful levy or sale on execution or other charges due to Landlord under legal processes shall be classified as an assignment within the meaning of this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord as shall be made upon receipt adjudication in bankruptcy, voluntary or involuntary, or an appointment of a receiver by Tenant of such cash payment;
(e) The proposed transfereea State or Federal Court, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use insolvency of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence execution of a Default by Tenant, Tenant shall have deed or other instrument for the right to collect such rentbenefit of creditors.
Appears in 1 contract
Sources: Lease Agreement (Ace Hardware Corp)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or ------------------------------ permit a Transfer by Tenant, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without Landlord’s 's prior written consent, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises, any transfer of 50% or more of the voting stock or interests of Tenant, or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant's interest under this Lease or sublet in the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s 's written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any parentTransfer by Tenant, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall liable, jointly and severally and as a principal, and not be diminished as a guarantor or reduced by the proposed Subject Transfer. Such evidence shall includesurety, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt the same extent as though no Transfer by Tenant of such cash payment;
(e) The proposed transfereehad been made, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change unless specifically provided to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for contrary in Landlord’s 's prior written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenantconsent. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfersubsequent Transfer by Tenant. In giving or withholding its consent to a proposed Transfer by Tenant, Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant/assignee with other tenants of the Building. UNDER NO CIRCUMSTANCES SHALL TENANT BE PERMITTED TO MAKE ANY ASSIGNMENT, SUBLEASE OR OTHER TRANSFER OF THIS LEASE TO, NOR PERMIT ANY OCCUPANCY OR USE OF THE DEMISED PREMISES BY, XOR NETWORK ENGINEERING, INC.
25.8, RED SHIFT, INC., OR ANY PARENT, SUBSIDIARY, OR AFFILIATE OF SUCH CORPORATIONS. [Intentionally omitted]
25.9Notwithstanding the foregoing, Landlord shall, at Landlord's option, have the right, in lieu of consenting to a Transfer by Tenant, to terminate this Lease as to the portion of the Demised Premises that is subject to the proposed Transfer by Tenant and to enter into a new lease with the proposed transferee and receive directly from the proposed transferee the consideration agreed to be given by such transferee to Tenant for the Transfer by Tenant. If Alternatively, at the request of Landlord, Tenant sublets shall pay over to Landlord all sums received by Tenant in excess of the Premises rent payable by Tenant hereunder which is attributable on an equally allocable square foot basis, to the subletting of all or any potion thereof, Tenant hereby immediately and irrevocably assigns portion of the Demised Premises so subleased. In the event Landlord consents to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for a Transfer by Tenant, any option to renew this Lease or right to extend the Lease Term shall automatically terminate unless otherwise agreed in writing by Landlord. Tenant covenants and agrees that in the event Landlord (or consents to a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default sublease by Tenant, Tenant and Tenant's Subtenant shall have enter into the right form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to collect an assignment, Tenant and Tenant's assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the REASONABLE standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant or Tenant's transferee requests any changes or revisions to any such rentagreement, Tenant shall pay to Landlord, within ten (10) days after demand by Landlord, the reasonable costs and expenses of Landlord in connection with any request by Tenant for consent to a Transfer, including REASONABLE attorneys' fees. LANDLORD AGREES THAT SO LONG AS TENANT IS NOT IN DEFAULT, TENANT MAY COLLECT RENT ON ANY SUBLEASES AND LANDLORD WILL NOT REQUIRE SUCH SUBTENANTS TO MAKE DIRECT PAYMENTS TO LANDLORD.
Appears in 1 contract
Sources: Lease (Carrier Access Corp)
Assignment or Subletting. 25.1. Except as hereinafter providedTenant agrees to use and occupy the Premises throughout the entire term hereof for the purpose or purposes herein specified and for no other purposes, Tenant shall notin the manner and to substantially the extent now intended, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, and not to assign, pledgesublet, encumber license, concession or otherwise transfer this LeaseLease or Tenant’s rights in the Premises, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)whether by voluntary act, operation of law, or otherwise, without obtaining the prior written consent of Landlord in each instance. Tenant shall seek such consent of Landlord by a written request therefor, setting forth such information as Landlord may reasonably deem necessary. Landlord agrees not to withhold consent unreasonably. Consent by Landlord to any assignment of this Lease or to any subletting of the Premises shall not be a waiver of Landlord’s prior written consentrights under this Article as to any subsequent assignment or subletting. Tenant will be responsible for Landlord’s reasonable attorney fees for review and approval of the sublease document. Landlord’s rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve Tenant from any of Tenant’s obligations in this Lease contained, nor shall any assignment or sublease or other transfer of this Lease be effective unless the assignees, subtenant or transferee shall at the time of such assignment, sublease or transfer, assume in writing for the benefit of Landlord, its successors or assigns, all of the terms, covenants and conditions of this Lease thereafter to be performed by Tenant and shall agree in writing to be bound thereby. Should Tenant sublease in accordance with the terms of this Lease, fifty percent (50%) of any profit received by Tenant shall be forwarded to and retained by Landlord, which consent increase shall be in addition to the Base Rent and Additional Rent due Landlord may not unreasonably withhold; providedunder this Lease. Notwithstanding the foregoing, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary of the following (a “Permitted Transferee”): (i) any successor corporation or affiliate of Tenant; or any party that results other entity resulting from a the merger or consolidation of Tenant; or (ii) any party entity that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingwhich controls, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Useis controlled by, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust is under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisescommon control with Tenant.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Commercial Lease (Ciprico Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedA. Tenant may not assign this Lease in whole or in part, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leasenor sublet, or sublet permit the Premises use or any part hereof (eachoccupancy by a party other than Tenant of, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Premises, without Landlord’s the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this provision shall constitute a default hereunder and shall be void ab initio. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any parentsubsequent assignment or subletting. Landlord’s basis for such refusal may include, subsidiary without limitation, the fact that the proposed sublessee or affiliate of Tenant; assignee, or any party that results from a merger person or consolidation of Tenant; entity which directly or any party that acquires all indirectly, controls, is controlled by, or substantially all is under common control with, the proposed sublessee or assignee, either (i) occupies space in the Project at the time of the assets request for consent, or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred ii) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date Landlord receives Tenant’s request for consent, to herein as a “Subject Transfer”). Notwithstanding lease space in the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2Project. In the event Tenant desires to effect a Transferassign this Lease or sublet, thenor permit such occupancy of, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to the Premises, or any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)portion thereof, Tenant shall provide written notice thereof to Landlord at least sixty (60) days prior to the “Assignment Notice”) containing information (including references) concerning proposed commencement date of such subletting or assignment, which notice shall set forth the character name of the proposed transfereesubtenant or assignee, assignee the relevant terms of any sublease or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant assignment and the proposed transferee, assignee or sublessee; copies of financial reports and the consideration other relevant financial reports and all other material terms and conditions relevant financial information of the proposed Transfersubtenant or assignee.
B. If this Lease be assigned, all in 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 the rent herein reserved, but no such detail assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as Landlord shall reasonably requireTenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. Tenant shall reimburse Landlord pay as additional rents hereunder, any increase in the insurance for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing the Project directly attributable to Tenant’s assignment or Tenant’s assignee’s occupancy of the Premises. This prohibition against assignment or subletting shall be construed to include a prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary, and a prohibition against any encumbrance of all and any part of Tenant’s leasehold interest.
C. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants and conditions hereof or any rents or other sums to be paid hereunder.
D. Upon any request to assign or sublet, Tenant will pay to Landlord, on demand, a sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or pledge of this Lease or sublease of any of the Premises, regardless of whether Landlord shall consent to, refuse consent, or determine that Landlord’s consent is not required for, such assignment, pledge or sublease. Provided that Tenant promptly provides to Landlord all relevant information to consider such request, such payment to Landlord hereunder shall not exceed $2,000.00.
E. If the Tenant is a corporation whose shares are not publicly traded or is a partnership, if there shall be any change in the ownership of 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.
F. Anything contained in the foregoing provisions of this Section to the contrary notwithstanding, neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such Transfer.
25.3. Landlorduse, occupancy or utilization based, in determining whether consent should be given to whole or in part, on the net income or profits derived by any person from the Premises leased, used, occupied, or utilized (other than an amount based on a proposed Subject Transfer, may give consideration to the financial strength fixed percentage or percentages of such transferee, assignee receipts or sublessee (notwithstanding Tenant remaining liable for Tenant’s performancesales), and any change in use that such transfereepurported lease, assignee sublease, license, concession or sublessee proposes to make other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use occupancy or utilization of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion part of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferG. Any purported sale, Landlord may require any or all assignment, mortgage, transfer of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer subletting of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall does not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance comply with the provisions of this Section 25 shall be void.
25.6. The consent by H. Tenant acknowledges and agrees that any and all right and interest of Landlord in and to a Transfer shall not relieve Tenant or proposed transfereethe Premises, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transferthe Project and the Property, nor shall it release Tenant or any proposed transferee, assignee or sublessee and all right and interest of Tenant from full and primary liability under Landlord in this Lease., may be conveyed, assigned or encumbered at the sole discretion of Landlord at any time, provided that such conveyance, assignment or encumbrance is subject to this Lease and the rights, privileges and easements granted herein..
25.7. Notwithstanding any Transfer, I. In the event Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or desires to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of assign this Lease or to sublease a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets portion of the Premises or any potion thereofPremises, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right and option to collect terminate this Lease, or the portion to be subleased for the proposed term of the sublease, which right or option shall be exercisable by written notice from Landlord to Tenant within thirty (30) days from the date Tenant gives Landlord written notice of its desire to assign or sublease. In the event Landlord elects not to terminate this Lease (within the time period described above), then such rentright shall be null and void. Additionally, Landlord agrees to waive such right of recapture in the event that Tenant shall have funded at least fifty percent (50%) of the initial cost of the build out of the Premises.
J. Notwithstanding the foregoing, Landlord’s consent shall not be required for any assignment or sublet to a validly existing entity controlling, controlled by, in common control with Tenant, nor to any entity that succeeds to Tenant’s interest in this Lease by reason of merger, or sale/acquisition of all or substantially all of the stock or assets), consolidation or reorganization; provided, however, with respect to an assignment or a sublease of all or substantially all of the Premises, such successor entity must (i) have a net worth comparable to Tenant as of the date of such assignment and/or sublet; and (ii) not conflict with any exclusive use granted to other tenants of the Project, or (iii) make any use of the Premises for other than the Permitted Use.
Appears in 1 contract
Sources: Lease Agreement (Applied Genetic Technologies Corp)
Assignment or Subletting. 25.130.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that condition or delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parentperson that as of the date of determination directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant (“Tenant’s Affiliate”), or any person or entity that acquires all or substantially all of Tenant’s assets or all the capital stock or other ownership interest in Tenant; any entity with which Tenant merges, regardless of whether Tenant is the surviving entity; or any party that results from a merger person or consolidation of Tenant; or any party entity that acquires all or substantially all of the business or assets operated or stock located on the Premises (“Successor”); provided that such Successor assumes in writing all of Tenant’s obligations under the Lease and the Successor at the time of such Transfer shall have no less than Twenty-Five Million Dollars ($25,000,000) in cash or cash equivalent assets; and provided, further, that a Successor does not become a Successor for purposes of a sham or to evade the requirements of Applicable Laws or this Lease. Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate or Successor (an “Allowable Exempt Transfer”). Any In the event the disclosure of such Exempt Transfer other than an Allowable Transfer shall be referred would violate Applicable Laws or involve the disclosure to herein as Landlord of material non-public information (a “Subject TransferConfidentiality Issue”), then Tenant shall notify Landlord of such Exempt Transfer within two (2) business days following its consummation, Tenant shall otherwise comply with the requirements of this Lease regarding such Exempt Transfer. Notwithstanding For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the foregoingstock or other equity interests of another person and (b) possessing, in no event shall Tenant be released from any directly or indirectly, the power to direct or cause the direction of its obligations under this Leasethe management and policies of such person.
25.230.2. In the event Tenant desires to effect a TransferTransfer other than an Exempt Transfer having a Confidentiality Issue, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.330.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 30.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.430.4. As conditions precedent to Tenant subleasing the Premises or to Landlord considering a request by Tenant for Landlord’s consent to a Subject TransferTenant’s transfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request not to exceed Two Thousand Five Hundred Dollars ($2,500) per request;
(d) If a Transfer Other than an Exempt Transfer, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises and improving the Premises in connection therewith) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below22.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.222.2.
25.530.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article 30 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.630.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.730.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.830.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 30.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 30.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.930.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
30.10. Notwithstanding anything to the contrary herein, Tenant may not Transfer this Lease, including as part of an Exempt Transfer, unless it concurrently Transfers the Office Lease to the same party in accordance with the terms of the Office Lease.
Appears in 1 contract
Sources: Lease (Revance Therapeutics, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign, mortgage, pledge, or otherwise transfer or encumber this Lease or any interest therein, either voluntarily or by operation of Applicable Laws, directly law or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leaseotherwise, or sublet the Premises whole or any part hereof (eachof the Leased Premises, a “Transfer”)or permit occupancy by anyone else, without obtaining on each occasion Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provideddeny, however, that Tenant shall have regardless of commercial reasonableness. In any assignment the right to assign all or any portion of its interest under assignee must assume this Lease or sublet all or any portion of the Premises without in writing on Landlord’s form. Any request for Landlord’s consent to any parent, subsidiary assignment or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer subletting shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any accompanied by payment of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Landlord’s reasonable administrative and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3relating thereto. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, Notwithstanding an assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any subletting or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent Leased Premises by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity anyone other than Tenant, Tenant shall not be deemed a waiver of released (nor shall any of the provisions of Tenant’s constituents, partners, or members be released) from any obligations, liabilities or covenants under this Lease or a consent and shall continue to any Transfer.
25.8remain responsible. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentRent from any assignee, subtenant or other occupant without releasing Tenant or waiving any right against Tenant for its default under this Article and without accepting the payor as a permitted tenant. Any transfer of (i) any corporate stock of; (ii) any partnership interest in; or (iii) any membership interest in Tenant that is deemed by Federal Banking regulations with jurisdiction over Tenant to constitute a change in control under Federal Banking law, or a merger, consolidation or liquidation of or by Tenant, either voluntarily or by operation of law, shall be deemed an assignment and require Landlord’s consent as stated above. Under any circumstances, Landlord shall not be liable for any money damages to Tenant or Tenant’s proposed assignee, transferee or subtenant for refusal to consent to any assignment or transfer of this Lease or transfer of Tenant’s corporate stock or sale of Tenants business or for refusal to consent to any subletting; Tenants sole remedy shall be specific performance.
Appears in 1 contract
Assignment or Subletting. 25.1. A. Except as hereinafter providedotherwise provided in subparagraph C below, Tenant shall not, either directly or indirectly, voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateinvoluntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and shall not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (each, a the authorized representatives of Tenant excepted) to occupy or use the Premises or any portion thereof (collectively “Transfer”), ) without first receiving the written consent of Landlord’s prior written consent, which consent Landlord may shall not be unreasonably withholdwithheld; provided, however, that Landlord may also terminate this Lease or exercise its other rights, all as and to the extent hereinafter provided. Any such Transfer without Landlord’s consent shall be void and shall, at the option of Landlord, constitute a Default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one Transfer shall not be deemed to be a consent to any other or further Transfer. This Lease and any interest in it shall not be Transferable as to the interest of Tenant by operation of law without the prior written consent of Landlord.
B. In the event Tenant contemplates an action under Subparagraph A, Tenant shall give Landlord at least forty (40) days’ notice thereof, designating the material terms proposed, the documentation for such transaction, and, if a sublease, the term thereof and space proposed to be sublet. Tenant shall also provide a current financial statement of any proposed assignee or subtenant. With respect to (x) any proposed assignment of Tenant’s interest in this Lease, or (y) any proposed sublease of essentially the entire Premises for essentially the remainder of then-current Term (in each case, other than pursuant to a Permitted Transfer, defined below), Landlord shall have the right and option, to assign all or any portion be exercised by notice to Tenant given within thirty (30) days after receipt of its interest under Tenant’s notice of intention to Transfer, (i) to terminate this Lease or sublet all or any as it pertains to the portion of the Premises without so proposed by Tenant to be Transferred, (ii) to approve Tenant’s proposal to Transfer, subject to Landlord’s subsequent written approval of the specific Transfer agreement between Tenant and the proposed Transferee (if such Transfer agreement is not included within Tenant’s initial notice), and which agreement shall require, among other things, that the Transferee maintain insurance for the benefit of Landlord in accordance with Article 12 hereof, or (iii) to terminate this Lease in its entirety. Upon acceptance of the offer to terminate this Lease as it pertains to the portion of the Premises Tenant seeks to Transfer or upon acceptance of the offer to terminate this Lease in its entirety, this Lease (in its entirety or as it pertains to said portion, as the case may be) shall terminate as of the end of the calendar month in which such notice of acceptance is given to Tenant. Tenant shall thereupon vacate and surrender to Landlord all or such portion of the Premises and the provisions of this Lease applicable to termination upon expiration of the Term shall apply to all or to such portion of the Premises, and in the event of a partial termination of this Lease, the Rent payable hereunder will be equitably reduced from and after the date of such termination. Such termination shall not relieve Tenant from liability for any breach or default with respect to all or such portion of the Premises occurring prior to termination. Tenant may include within its initial notice of intent to Transfer a copy of the proposed Transfer documentation, in which event Landlord will notify Tenant within the initial thirty (30) days described above whether or not Landlord consents, or will reasonably withhold consent, to the proposed Transfer; alternatively, if Tenant does not include the proposed Transfer document with such initial submission, Landlord will respond to any second notice of proposed Transfer which includes such Transfer documentation within thirty (30) days following Tenant’s delivery to Landlord of such notice. If Landlord fails to timely respond to Tenant’s submission which includes the proposed Transfer document, Tenant may send a second (2nd) notice to Landlord, which notice must contain the following inscription, in bold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO PARAGRAPH 28.B OF LEASE — FAILURE TO TIMELY RESPOND WITHIN FIVE (5) BUSINESS DAYS SHALL RESULT IN DEEMED APPROVAL OF ASSIGNMENT OR SUBLEASE.” If Landlord fails to deliver notice of Landlord’s consent to, or the withholding of Landlord’s consent, to the proposed Transfer or sublease within such five (5) business day period, Landlord shall be deemed to have approved the Transfer or sublease in question. If Landlord at any parenttime timely delivers notice to Tenant or Landlord’s withholding of consent to a proposed Transfer or sublease, subsidiary Landlord shall specify in reasonable detail in such notice, the basis for such withholding of consent.
C. Notwithstanding anything to the contrary contained in this Article 28, in the event of a Transfer by Tenant to a Transferee which is (i) an Affiliate of Tenant (an entity which is controlled by, controls, or affiliate of is under common control with, Tenant; or any party that results from a merger or consolidation of Tenant; or any party that , is an “Affiliate”), (ii) an entity which acquires all or substantially all of the assets or interests (partnership, stock or other) of Tenant, or (iii) an entity which is the resulting entity of a merger or consolidation of Tenant, such Transfer shall not require Landlord’s consent and shall not entitle Landlord to terminate this Lease, provided that (A) Tenant provides prior written notice to Landlord of any such Transfer (unless such prior notice is prohibited by applicable law or confidentiality agreement, in which event Tenant will provide such written notice as soon as permissible), (B) such Transfer is not a subterfuge by Tenant to avoid its obligations under this Lease, (C) in the event of a Transfer under clauses (ii) or (iii), the Transferee after the completion of the Transfer shall have a tangible net worth computed in accordance with generally accepted accounting principles consistently applied (and excluding goodwill, organization costs and other intangible assets) which is sufficient in Landlord’s reasonable opinion for the Transferee to satisfy its monetary obligations over the term of this Lease (in the event of an assignment) or over the term of the sublease (in the event of a sublease); and (D) the Transferee shall assume in writing for the benefit of Landlord, and pursuant to an agreement reasonably acceptable to Landlord, the obligations of Tenant under this Lease applicable to such Transfer. The Transferee under a Transfer specified in items (an i), (ii) or (iii) above shall be referred to as a “Allowable Transfer”). Any Transfer other than an Allowable Permitted Transferee” and any such Transfer shall be referred to herein as a “Subject Permitted Transfer”). Notwithstanding .” “Control,” as used herein, shall mean the foregoingownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or possession of the right to vote, in no event shall Tenant be released from any the ordinary direction of its obligations under this Leaseaffairs, of at least fifty-one percent (51%) of the voting interest in, any person or entity.
25.2. D. In the event Tenant desires to effect a Transferall events, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)if this Lease is assigned, Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed continue to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully primarily liable under this Lease during and the unexpired Term;
(b) Tenant assignee shall provide Landlord with evidence reasonably satisfactory execute an agreement by which it assumes and agrees to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience jointly and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides severally liable for the receipt by, on behalf of or on account of complete performance by Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordobligations hereunder.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) E. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for the performance of Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact assignment of all or any part of the Premises. A receiver for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided Lease except that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
F. Neither Tenant nor any other person having an interest in the possession, use, occupancy, or utilization of the Premises shall enter into any lease, sublease, license, concession, or other agreement for use, occupancy, or utilization of space in the Premises which provides for rental or other payment for such use, occupancy, or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied, or utilized (other than an amount based on a fixed percentage or percentages of receipt or sales) and any such purported lease, sublease, license, concession, or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy, or utilization of any part of the Premises.
G. Any net profits earned by Tenant from subleasing or from an assignment of this Lease shall be divided and paid 50% to Landlord and 50% to Tenant. Net profits shall be determined by subtracting from the rent and other consideration paid by the subtenant or assignee, the rent and other sums due to Landlord under this Lease for the applicable space and period; provided however that Tenant shall be entitled to reimbursement, out of such net profits, for any reasonable amount expended by Tenant for brokerage commissions, commercially reasonable legal fees paid by Tenant associated with the sublease or assignment, improvements required by the assignee or subtenant (inclusive of design, project management and permitting costs) and paid for by Tenant (or allowances provided in lieu thereof).
H. Tenant shall pay to Landlord the amount of Landlord’s cost of processing every proposed assignment (including, without limitation, the cost of attorneys’ and other professional fees and the administrative, accounting, and clerical time of Landlord), and the amount of all direct and indirect expenses incurred by Landlord arising from any assignee’s or subtenant’s taking occupancy. Notwithstanding anything to the contrary contained in this Lease, Landlord shall have no obligation to process any request for its consent to assignment or sublease prior to Landlord’s receipt of payment by Tenant of the amount of Landlord’s estimate of the processing costs and expenses and all other direct and indirect costs and expenses of Landlord and its authorized representatives arising from such matter, and in no event shall the processing fee charged hereunder be less than $2,000.
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Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notuse and occupy the Demised Premises throughout the entire Term only for the purposes herein specified and for no other purposes, either voluntarily in the manner and substantially the extent now intended, and shall not transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all the Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Landlord in each instance, which consent may be withheld by Landlord in its sole discretion, except however, Landlord shall not unreasonably withhold its consent to a sublease if the sublessee has a net worth greater than One Million Dollars . Tenant shall seek such consent of Landlord by a written request therefor, setting forth such information as Landlord may deem necessary, which if the consent requested is for a sublease with a sublessee purported to have a net worth greater than one million dollars must include a letter of intent and a current and complete financial statement certified by the sublessee or an officer of the sublessee if sublessee is an entity. If a sublease approval by Landlord is for a sublessee having a net worth greater than one million dollars, Landlord shall not disapprove a sublease or terms thereof that are consistent with the letter of intent provided to Landlord. Consent by Landlord to any assignment of this Lease or to any subletting of the Demised Premises without shall not be deemed a consent or waiver of Landlord’s consent right under this Article as to any parentsubsequent assignment or subletting. Sale, subsidiary assignment, or affiliate change of Tenant; ownership of Tenant or any party that results from a merger or consolidation sale of Tenant; or any party that acquires all or substantially all of the assets of Tenant, will require Landlord consent, which consent may be withheld by Landlord in its sole discretion, unless Tenant provides to Landlord evidence satisfactory to Landlord, including a financial statement certified by the purchaser, assignee or stock successor owner evidencing the purchaser, assignee or successor owner has a net worth of Tenant not less than one million dollars and such purchaser, assignee or successor owner expressly assumes Tenant’s obligations under this Lease by an assignment in form satisfactory to Landlord (an if such conditions are satisfied, herein a “Allowable TransferPermitted Assignee”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between public offering of interests in Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease thereof shall not be diminished required. Landlord’s right to assign this Lease is and shall remain unqualified upon any sale or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status transfer of the proposed transfereeBuilding and, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with providing the review, processing and documentation purchaser succeeds to the interest of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant Landlord shall pay twenty-five percent (25%) thereupon be entirely freed of all obligations of such excess the Landlord hereunder, and shall not be subject to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlordresulting, except to credit from any act or omission or event occurring after such payment against those due by conveyance. No such assignment or subleasing shall relieve the Tenant under from any of Tenant’s obligations in this LeaseLease contained, and nor shall any such proposed transferee, assignee assignment or sublessee shall agree to attorn to Landlord sublease or its successors and assigns should other transfer of this Lease be terminated effective unless the assignee, subtenant or transferee shall at the time of such assignment, sublease or transfer, assume in writing for any reason; providedthe benefit of Landlord, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premisesassigns, all of the items relating terms, covenants, and conditions of this Lease thereafter to Hazardous Materials of be performed by Tenant and such proposed transferee, assignee or sublessee as described assumption is in Section 39.2.
25.5form satisfactory to Landlord. Any Transfer that is not Should Tenant sublease in compliance accordance with the provisions terms of this Section 25 Lease, fifty percent (50%) of any increase in rental and other consideration received by Tenant over the per square foot rental rate which is being paid by Tenant shall be void.
25.6. The consent forwarded to and retained by Landlord, which increase shall be in addition to the Base Rent and Additional Rent due Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
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Assignment or Subletting. 25.1A. Subtenant shall not have the right to assign or further sublet its interest in this Sublease without the express prior written consent of Prime Landlord and Sublandlord (which consent Sublandlord shall not unreasonably withhold, condition or delay in each instance), and without otherwise complying with the provisions of this Sublease and the applicable provisions of the Prime Lease. Except With regard to any contemplated sublet or assignment, Subtenant shall first submit in writing to Sublandlord for Sublandlord’s review and approval:
(a) the name and address of the proposed assignee or subtenant, (b) the proposed form of assignment or sublease, (c) a statement of the rent, additional rent and a description of the other material terms of the proposed transaction including without limitation the proposed use of the Sub-Premises, and (d) reasonably satisfactory certified financial statements showing that the proposed sub-subtenant or assignee has a net worth equal to the greater of Subtenant’s net worth as hereinafter demonstrated to Sublandlord prior to execution of this Sublease, or ten (10) times the amount of the rental obligation to be assumed by such sub-subtenant or assignee pursuant to the proposed sublease or assignment. Reviewed financial statements, as opposed to “certified” financial statements, shall be acceptable for purposes of the preceding sentence provided the proposed sub-subtenant or assignee has not provided certified financial statement to any investor or other third party covering any portion of the period for which Sublandlord is requesting financial statements. In the event that Prime Landlord approves Subtenant’s proposed sub-subtenant or assignee, Sublandlord agrees not to unreasonably withhold its consent to any such sublease or assignment, provided that Sublandlord has approved the documentation to be employed by Subtenant in connection with the transaction in question and further provided that Sublandlord has not exercised its recapture rights under this Article 22. The following shall be deemed an assignment of this Sublease for which Sublandlord’s consent shall be required: any dissolution, merger, consolidation, or other reorganization of Subtenant, any sale or transfer (or cumulative sales or transfers) of the capital stock of Subtenant in excess of fifty-one percent (51%), or any sale (or cumulative sales) or transfer of fifty-one percent (51%) or more of the value of the assets of Subtenant provided, Tenant however, the foregoing shall notnot apply to corporations the capital stock of which is publicly traded.
B. Upon receiving Sublandlord’s written consent, either voluntarily a duly executed and complete duplicate original of the sublease or assignment shall be delivered to Sublandlord and Prime Landlord within ten (10) days after execution thereof. Any such sublease or assignment shall provide that the subtenant or assignee, with respect to the Sub-Premises, shall comply with all applicable terms and conditions of this Sublease to be performed by operation the Subtenant hereunder. Any such assignment of Applicable Lawsthis Sublease shall contain an assumption by the assignee of all of the terms, directly covenants and conditions of this Sublease to be performed by the Subtenant. Sublandlord shall be deemed to be reasonably withholding its consent to a proposed assignee or indirectly sellsubtenant, hypothecateif, by way of example and not limitation, Subtenant is in default under the terms of the Sublease at the time of its request for such consent, or if Sublandlord, in its sole reasonable judgment, determines that such proposed subtenant or assignee is engaged in business which does not fit within the use restrictions, for the Sub-Premises.
C. In response to any request for Sublandlord’s consent to an assignment of this Sublease or a further subletting of the Sub-Premises, Sublandlord shall have the right, to be exercised in Sublandlord’s sole discretion, to terminate this Sublease as of the date the proposed sublease or assignment is to take effect and rent becomes payable thereunder, as if such date were the Expiration Date. Sublandlord shall exercise such right upon written notice to Subtenant delivered no later than thirty (30) days following Subtenant’s request for Sublandlord’s consent.
D. Subtenant hereby covenants and agrees that Subtenant shall not sublet or assign its interest in this Sublease unless Subtenant removes itself entirely from the Sub-Premises, and in any event, Subtenant shall not assign, pledgefurther sublet or transfer or hypothecate its interest hereunder, encumber to more than one (1) entity. In no event, however, shall any such assignment, subletting, transfer, hypothecation or otherwise transfer encumbrance relieve Subtenant of any of its obligations (for which it shall remain primarily liable) to Sublandlord hereunder, unless Sublandlord recaptures the Sub-Premises as provided for in this LeaseArticle. Subtenant hereby covenants and agrees not to further sublet or assign its interest herein to any business competitor of Sublandlord’s or Sublandlord’s successors and assigns, nor to violate any noncompetition provisions of any instrument to which either Prime Landlord or sublet Sublandlord is a party to with regard to the Premises Building or any part hereof portion thereof.
E. To the extent Prime Landlord charges Sublandlord for the its costs and expenses incurred in reviewing any proposed sublease or assignment, Subtenant shall reimburse Sublandlord for the cost of same within ten (each10) days following demand therefor as additional rent due hereunder.
F. Notwithstanding the foregoing to the contrary, a “Transfer”), without subject to Subtenant obtaining Prime Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; providedupon delivery to Sublandlord of prior written notice and an original fully-executed counterpart of an assignment in form and substance satisfactory to Sublandlord, however, that Tenant Subtenant shall have the one-time right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a sell by merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred Webley to herein as Parus so that Webley becomes a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any wholly-owned subsidiary of its obligations under this LeaseParus.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall A. Subtenant may not, either voluntarily without Sublandlord’s prior written consent, (i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Subtenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, iv) permit the occupancy of the Premises or any part thereof by anyone other than Subtenant or its subsidiaries or affiliates (any of the foregoing herein defined as a “Transfer”). Sublandlord’s consent to an assignment of this Sublease or a further sublease of the Premises may not be unreasonably withheld, without delayed or conditioned. If Sublandlord consents to a proposed Transfer, Sublandlord will use reasonable efforts to obtain the consent of Prime Landlord. Any cost of obtaining Prime Landlord’s prior written consentconsent will be borne by Subtenant. Further, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have Subtenant will reimburse Sublandlord for any reasonable costs (including attorneys’ fees) incurred by Sublandlord in connection with any Transfer.
B. Subtenant has the right to assign all this Sublease or any portion of its interest under this Lease or further sublet all or any portion part of the Premises to a Related Entity without Sublandlord’s approval, but subject to Prime Landlord’s consent to any if such consent is required under the Prime Lease. A “Related Entity” means a parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingsubsidiary, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Useaffiliate, or jeopardizing directly successor (by merger, consolidation, transfer of assets, assumption or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%otherwise) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Office Sublease (Walter Investment Management Corp)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant (Tenant, provided that the assignee first executes, acknowledges and delivers to Landlord an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall agreement whereby the assignee agrees to be referred to herein as a “Subject Transfer”). Notwithstanding bound by all of the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.825.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord's sole option, in the event of the termination of this Lease. [Intentionally omitted]Landlord and any lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease.
25.9. If 25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises or any potion thereofto a transferee other than one set forth in Section 25.2, Tenant hereby immediately and irrevocably assigns shall pay to Landlord, as security for Tenant’s obligations Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, all rent from after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such sublettingtransfer and payable to third parties, and appoints Landlord as assignee and attorney-in-fact after Tenant has recouped any expenses incurred for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until tenant improvements to the occurrence of a Default by Tenant, Tenant shall have transferred space constructed after the right to collect such rentTerm Commencement Date.
Appears in 1 contract
Sources: Lease (Cytel Corp/De)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot assign this Lease or any interest in it, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or and shall not sublet the Premises or any part hereof (eachof it or any right or privilege appurtenant to this Agreement or permit any other person, a “Transfer”)the agents and servants of Tenant excepted, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have to occupy or use the right to assign all Premises or any portion of its interest under it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may, in lieu of granting such consent, terminate this Lease or sublet all or any portion of the Premises without Landlord’s Lease. A consent to any parentone assignment, subsidiary subletting, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer occupation and use by another person shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to a consent to a Transfer to a transfereeany other or further assignment, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usesubletting, or jeopardizing directly occupation, nor a waiver of the provisions of this section, except as to the specific instance covered by it. Any such assignment, subletting, or indirectly occupation without consent shall be void and shall at the status option of Landlord or terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord’s affiliates as a Real Estate Investment Trust under .
B. Any transfer of shares by Tenant by reason of which the Code; provided that present shareholders own less than fifty-one percent (a51%) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesoutstanding stock of Tenant or a surviving corporation shall constitute an assignment of this Lease subject to the provisions limiting assignment.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferC. Except as otherwise expressly provided in this Lease, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease or a consent to any Transferunless Landlord consents.
25.8. [Intentionally omitted]
25.9. If D. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease, and appoints Landlord Landlord, as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
E. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing or prospective Tenant of the buildings.
F. Tenant agrees to reimburse Landlord for all expenses and time, including attorneys' fees, incurred by Landlord in connection with any requested and permitted assignment or subleasing. This sum shall be in addition to the attorneys' fees and costs allowed under this Lease.
Appears in 1 contract
Sources: Lease (Yardville National Bancorp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign, either voluntarily or by operation of Applicable Lawstransfer, directly or indirectly sell, hypothecate, assignmortgage, pledge, hypothecate or encumber or otherwise transfer this Lease, or any interest therein, and Tenant shall not sublet the Premises or any part hereof (eachthereof, a “Transfer”)or any right or privilege appurtenant thereto, or suffer any other person to occupy or use the Premises, or any portion thereof, without Landlord’s the prior written consentconsent of the Landlord, which consent will not be unreasonably withheld. Without in any way limiting Landlord's right to refuse such consent in ▇▇▇▇▇▇▇▇'s sole discretion, Landlord may not unreasonably withhold; provided, however, that Tenant shall have refuse to give such consent unless ▇▇▇▇▇▇ remains fully liable during the right unexpired term of the Lease and Landlord further may refuse to assign all give such consent if in ▇▇▇▇▇▇▇▇'s sole discretion and opinion the quality of tenancy is or may be in any portion way adversely affected during the term of its interest under this the Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character financial worth of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions new tenant is less than that of the proposed Transfer, all in such detail as Landlord shall reasonably requireTenant executing this Lease. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord ▇▇▇▇▇▇ agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual 's reasonable attorney's fees and other costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection conjunction with the review, processing and documentation of any such request;
(d) If a Transfer requested assignment, transfer, subletting, change of ownership or hypothecation of this Lease or ▇▇▇▇▇▇'s interest in and to the Premises. Any assignment consented to by Landlord shall in no way relieve or release Tenant from liability hereunder or from any of the Premises provides for the receipt byterms, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing covenants and subleasing the Premises) in excess of the rental and other charges due obligations required to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due performed by Tenant under this Lease, and any such proposed transferee, assignee or sublessee . This Lease shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfernot, nor shall it release Tenant or any proposed transfereeinterest herein, assignee or sublessee be assignable as an interest of Tenant from full and primary liability under this Lease.
25.7by operation of law, without the prior written consent of Landlord. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for In the payment of all Rent and other sums due or to become due hereunder, and for event the full performance of all other terms, conditions and covenants to premises should be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlordsublet, as security for Tenant’s obligations under this Leaseherein provided, all rent from any such sublettingat an increased rental, and appoints fifty percent (50%) of said increase shall be paid to Landlord by Tenant as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentadditional rental 20.
Appears in 1 contract
Sources: Commercial Lease (Sunrise Usa Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber or otherwise transfer this Leasemortgage, or encumber this Lease nor sublet or suffer or permit the Premises or any part hereof (each, a “Transfer”), thereof to be used by others without Landlord’s the prior written consentconsent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned, or delayed. As long as Tenant hereunder shall be a corporation, any transfer, sale, pledge, or other disposition (whether in a single transaction or a related series of transactions) of fifty-one percent (51%) or more of the aggregate voting power in the corporation shall be deemed an assignment of this Lease and therefore prohibited without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that such transfer, sale, pledge or other disposition of fifty-one percent (51%) or more of the corporation's aggregate voting power shall not be deemed an assignment of this Lease if the corporation is a corporation whose stock is publicly traded and that is required to file quarterly reports with the United States Securities and Exchange Commission. In the event as the result of a permitted assignment Tenant hereunder becomes a partnership or limited liability company, any transfer, sale, assignment, pledge or other disposition of any of the interests of the general partners of Tenant or of greater than fifty-one percent (51%) of the interests of Tenant, whether such interests be those of the general or limited partners or members, shall be deemed an assignment of this Lease and therefore prohibited without the express written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed. If Tenant submits to Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right a written request for Landlord's consent pursuant to assign all or any portion this Section 9.11 and Landlord fails to respond thereto within ten (10) days of its interest under this Lease or sublet all or any portion receipt of the Premises without such request, and Tenant submits to Landlord a second written request for Landlord’s 's consent to any parentthe same transaction which clearly indicates thereon that it is a second request, subsidiary or affiliate if Landlord fails to respond to such second request within five (5) business days of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer its receipt, such failure to respond shall be referred presumed to herein as a “Subject Transfer”)constitute the consent of Landlord to the proposed transaction. Notwithstanding the foregoing, Landlord shall consent to any bona fide assignment of this Lease or sublease of the Premises to an "Affiliate" of Tenant. An "Affiliate" of Tenant shall mean a person or entity that controls Tenant, is controlled by Tenant, or is under common control with Tenant, as the term control is defined under the Securities Exchange Act of 1934, as amended. If this Lease is assigned to an Affiliate or the Premises is subleased to an Affiliate, any transfer, sale, pledge or other disposition (whether in a single transaction or a related series of transactions) of fifty-one percent (51%) or more of the aggregate voting power in the Affiliate shall constitute an assignment unless the Affiliate meets the publicly traded exemption set forth above. If this Lease is assigned or if the Premises or any part thereof is sublet or occupied by anyone other than Tenant without the express written consent of Landlord, Landlord may collect rent from assignee, sub-tenant or occupant and apply the net amount collected to all Rent due hereunder, but no assignment, sub-letting, occupancy, or collection shall be deemed to be a waiver of this covenant or the acceptance of the assignee, sub-tenant or occupant as Tenant, or a release of Tenant's duties and obligations hereunder. In the event this Lease is assigned or the Premises, or any part thereof, is sublet or occupied by anyone other than Tenant or an Affiliate, fifty percent (50%) of any Base Rent received by Tenant and/or the Affiliate in excess of that defined in Section 4 above shall be paid to Landlord. No assignment shall release Tenant be released from of any of its obligations or liabilities under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 7.1 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may will not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease in whole or in part, nor sublet all or any portion part of the Premises Premises, nor license concessions or lease departments therein, without Landlord’s first obtaining the written consent of Lessor. Such consent shall not be unreasonably withheld. Any attempts at assigning or subletting without Lessors consent shall be null and void. Consent by Lessor to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any parentsubsequent assignment or subletting. This prohibition includes any subletting or assignment, subsidiary which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or affiliate other change of Tenant; ’s corporate or proprietary structure.
7.2 If Tenant is a corporation and if at any party that results from a merger time during the Term, any part or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer corporate shares shall be referred transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to herein as a “Subject Transfer”). Notwithstanding the foregoing, result in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usepresent control of said corporation by the person or persons now owning a majority of said corporate shares, Tenant shall notify Lessor of this event within fifteen (15) days from the date of such transfer and if Lessor’s financial risk is increased or jeopardizing directly or indirectly if the status operation of Landlord or any of Landlord’s affiliates the business is significantly altered as a Real Estate Investment Trust under the Code; provided that result of such change in control Lessor may terminate this Lease at any time after such change by giving Tenant sixty (a60) Landlord agrees days written notice.
7.3 If Lessor consents to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingfollowing shall be applicable:
(a) i. The proposed Tenant will not be violating any prohibitive use in this lease or with any existing Tenant in the Shopping Center/Business Park at the time of said assignment; and
ii. The new Tenant assumes in writing, in a form satisfactory to the Lessor, the obligations under this lease on behalf of Tenant; and
iii. Tenant and any guarantor shall remain fully liable as the primary obligor under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transferlease; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6iv. The consent by Landlord to a Transfer shall Tenant has not relieve Tenant violated any terms or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferAgreement.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and the business experience resume for the immediately preceding ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee or subtenant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than thirty (30) days prior to the effective date of the proposed assignment or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of One Hundred Fifty and No/100 Dollars ($150.00) or one percent (1%) of the annual Rent, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than ten percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default tinder the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
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Sources: Warehouse Lease (Maxxis Group Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, not either voluntarily or by operation of Applicable Lawslaw assign, directly or indirectly sell, hypothecateencumber, assign, pledge, encumber pledge or otherwise transfer this Leaseall or any part of Tenant’s leasehold estate hereunder, or permit the Premises to be occupied by anyone other than Tenant or Tenant’s employees, or sublet the Premises, or any portion thereof, without obtaining, in each such instance, Landlord’s prior written consent. Any such assignment or other transfer or subletting shall be subject in each instance to the recapture option of Landlord’s consent shall not be unreasonably withheld. Landlord’s subjective determination of the financial soundness of the proposed assignee shall be conclusive. Consent by Landlord to one or more assignments of this Lease or to one or more sublettings of the Premises shall not operate to exhaust Landlord’s rights under this Article. Tenant agrees to reimburse Landlord for Landlord’s reasonable cost and attorneys’ fees incurred in conjunction with the processing and documentation of any assignment or subletting under this Lease or Tenant’s interest in and to the Premises. If Tenant desires at any time to assign this Lease or to sublet the Premises or any part hereof portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (each, a “Transfer”), without i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant’s or assignee’s business to be carried on the premises; (iii) the terms and provisions of the Provisions of the proposed sublease or assignment; and (iv) such reasonable financial information as Landlord may request concerning the proposed subtenant or assignee. Any request for Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all approval or any portion of its interest under this Lease a sublease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer assignment shall be referred accompanied with a check in such reasonable amount as Landlord shall advise for the cost of initial review and/or preparation of any documents relating to herein as a “Subject Transfer”). Notwithstanding the foregoing, such proposed transfer but in no event less than $200.00. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay rent and perform all other obligations to be released performed by Tenant hereunder. The acceptance of rent by Landlord from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but person shall not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of waiver by Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a to be consent to any Transferassignment or subletting.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; ’s parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; ’s assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant’s obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 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), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full 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 acquires performance by any such assignee or sublessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged 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 Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets Premises, deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of any sublease of a portion of the Premises, Tenant shall give notice to Landlord of the existence and term thereof, and of the name and address of the subtenant thereunder.
20.01 Subject to Section 20.02 below, all fixtures, machinery, equipment, improvements and appurtenances attached to, or stock built into, the Premises at the commencement of, or during the Term, including overhead cranes installed as of the Commencement Date (but not any replacements of such overhead cranes), excepting those placed there by or at the expense of Tenant, shall become and remain a part of the Premises; shall be deemed the property of Landlord, without compensation or credit to Tenant; and shall not be removed by Tenant at the Expiration Date unless Landlord requests their removal.
20.02 All movable non-structural partitions, business and trade fixtures, machinery and equipment, communications equipment and office equipment, that are installed in or affixed to the Premises by, or for the account of, Tenant without expense to Landlord and that can be removed without structural damage to the Premises, any overhead crane which is installed after the Commencement Date whether or not replacing an existing crane and related infrastructure installed by Tenant, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (collectively, the “Tenant’s Property”) shall be and shall remain the property of Tenant and may be removed by Tenant at any time during the Term, provided Tenant repairs or pays the cost of repairing any damage to the Premises resulting from the removal thereof. At or before the Expiration Date, or the date of any earlier termination, Tenant, at its expense, shall remove from the Premises all of Tenant’s Property (an “Allowable Transfer”except such items thereof as Landlord shall have expressly permitted, in writing, to remain, which property shall become the property of Landlord), and Tenant shall repair any damage to the Premises or the Premises resulting from removal of Tenant’s Property. Any Transfer other items of Tenant’s Property that shall remain in the Premises for more than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferafter the Expiration Date, but not or more than ninety thirty (9030) days in any eventfollowing an earlier termination date, prior to may, at the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character option of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transfereehave been abandoned, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change and in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Leasecase, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall items may be received retained by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee as its property or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder disposed of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet agrees to use and occupy the Premises throughout the entire term hereof for no purpose or any part hereof purposes other than those herein specified in the manner and to substantially the extent now intended, and, except as otherwise expressly provided in this Article with respect to Affiliates (each, a “Transfer”as defined herein), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to transfer or assign all or any portion of its interest under this Lease or sublet all said Premises, or any portion part thereof whether by voluntary act, operation of law, or otherwise, without obtaining the Premises without Landlord’s prior written consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, Landlord in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requireeach instance. Tenant shall reimburse seek such consent of Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by a written request therefor, setting forth such information as Landlord in reviewing Tenant’s request for such Transfer.
25.3may deem reasonably necessary. Landlord, in determining whether Landlord agrees not to withhold or delay consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premisesunreasonably. In no event Landlord shall Landlord not be deemed to be unreasonable for declining acting unreasonably if its mortgagee has a right to provide or withhold consent and refuses to a Transfer consent. Consent by Landlord to a transferee, assignee or sublessee any assignment of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory or to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use subletting of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision a waiver of any agreement pertaining to the Transfer, except for Landlord’s written consent rights under this Article as to any subsequent assignment or subletting. Landlord’s rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the same;
(j) Tenant from any of Tenant’s obligations in this Lease contained, nor shall deliver to Landlord one executed copy any assignment or sublease or other transfer of any and all written instruments evidencing this Lease be effective unless the assignee, subtenant or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee shall at the time of such assignment, sublease or sublessee to be true and correcttransfer, that assume in writing for the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to benefit of Landlord, on its successors or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premisesassigns, all of the items relating terms, covenants and conditions of this Lease thereafter to Hazardous Materials of such proposed transferee, assignee be performed by Tenant and shall agree in writing to be bound thereby. Should Tenant assign or sublessee as described sublease in Section 39.2.
25.5. Any Transfer that is not in compliance accordance with the provisions terms of this Section 25 Lease to a non-affiliate third party, fifty percent (50%) of the excess of any subrent or assignment consideration received by Tenant over the Base Rent payable by Tenant under this Lease (after Tenant has recouped its costs and expenses of obtaining such subtenant or assignee) shall be void.
25.6. The consent forwarded to and retained by Landlord, which increase shall be in addition to the Base Rent and Additional Rent due Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any TransferIf Tenant is a corporation (other than a corporation whose shares are publicly traded), Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereundera limited liability entity, or a partnership, any transfer or series of transfers of the acceptance ownership interests of performance Tenant which results in more than 50% of any other term, covenant or condition thereof, from any person or entity such interests being held other than Tenant as held on the date of this Lease shall be deemed an assignment of this Lease which shall require Landlord’s consent, which consent shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transferunreasonably withheld.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Mathstar Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, 8.2.1 All assignments of this Lease or sublease or subleases of the Premises by Tenant or occupancy of all or part of the Premises by anyone other than Tenant shall notbe subject to and in accordance with all of the provisions of this Section.
8.2.2 Tenant may not assign this Lease or sublet the Premises, either voluntarily in whole or in part, to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld.
8.2.3 Any assignment or sublease by operation Tenant shall be only for the permitted Use, and for no other purpose, and in no event shall any assignment or sublease of Applicable Laws, directly the Premises release or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer relieve Tenant from any obligations of this Lease, .
8.2.4 In the event that Tenant shall seek Landlord's permission to assign this Lease or sublet the Premises or any part hereof allow additional occupants, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding ten (each, a “Transfer”), without Landlord’s prior written consent, which consent 10) years of the proposed assignee or subtenant or occupant and such other information concerning such proposed assignee or subtenant or occupant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than thirty (30) days prior to the effective date of the proposed assignment or sublease or occupancy. It shall be a condition to any consent by Landlord to an assignment or sublease or occupancy that Tenant shall pay to Landlord a processing fee in the amount of $125.00 or one percent (1%) of the annual current value of this Lease, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease or occupancy-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord's consent. Any consent by Landlord to any assignment or sublease or occupancy, or to the operation of a concessionaire or licensee, shall not unreasonably withhold; providedconstitute a waiver or the necessity for such consent to any subsequent assignment or sublease or occupancy, or operation by a concessionaire or licensee.
8.2.5 If Tenant is a corporation or partnership and any transfer, sale, pledge or other disposition of more than _______________/ JK LANDLORD TENANT fifty percent (50%) of the common stock or partnership interests shall occur, or voting control or power to vote the majority of the outstanding capital stock or partnership interests be changed, such action shall be deemed an assignment under the terms of this Lease and shall be subject to all the terms and conditions thereof provided , however, that Tenant shall have the right to assign all or any portion a public offering of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or capital stock of Tenant (shall not be deemed an “Allowable Transfer”)assignment for the purposes of this section. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default under the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the Premises for rentals in excess proportionately of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any consideration for any assignment of this Lease shall be paid to Landlord. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assignment or sublessee; the Assignment Date; sublease. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except So long as hereinafter providedno Tenant Default shall have then occurred and be continuing, Tenant shall notand subject to the terms and limitations set forth below, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all the Premises (to no more than three (3) subtenants in the aggregate at any one time) or any portion thereof only with the prior written consent of Lessor, which consent shall not be unreasonably withheld if (i) as to an assignment or as to a sublease of more than 30,000 square feet, the Premises without Landlord’s consent proposed assignee or subtenant is reasonably creditworthy, (ii) the proposed assignee or subtenant assumes, in a written assumption agreement in form and substance acceptable to any parentLessor in its commercially reasonable discretion, subsidiary Tenant's obligations hereunder (as to subtenants, excluding the obligation as to pay Base Rent or affiliate Additional Rent) and otherwise agrees to be bound by the terms hereof, from and after the date of Tenant; or any party that results from a merger or consolidation assignment of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)this Lease. Notwithstanding the foregoing, in under no event shall circumstances will Tenant be released from any of obligations hereunder, nor will Guarantor be released from its obligations under the Lease Guaranty, upon any such assignment or sublease, including without limitation any "Intracorporate Transfer" or space sharing arrangement as contemplated below in this Section 24. Should Tenant sublease in accordance with the terms of this Lease, any increase in rental received by Tenant over the per square foot rental rate which is being paid by Tenant (after reimbursement to the Tenant of reasonable costs incurred in consummating such sublease, including, without implied limitation, attorneys' fees, brokerage commissions and the cost of making changes by reason thereof in the Premises such commissions and costs of changes in the Premises to be amortized of the term of occupancy of the Premises by the assignee or sublessee) shall be forwarded to and retained by Lessor, which increase shall be in addition to the Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Office/Warehouse Lease (Manufacturers Services LTD)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Landlord’s 's consent to any parent, subsidiary an assignment of this Sublease or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a further sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require be unreasonably withheld, and if Landlord consents thereto, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord provided that Landlord shall have no liability to Tenant for the failure to obtain such consent under any change to the Permitted Use;
(i) circumstances and Landlord shall not be bound obligated to expend any funds in order to obtain such consent. Any cost of obtaining Prime Landlord's consent shall be borne by Tenant. Any permitted sublease or assignment shall be subject to all of the terms and provisions of Section 14.1 of the Prime Lease; provided however, that Landlord shall not have any provision termination rights under Section 14.1(C) of the Prime Lease. Subject to the terms and provisions of Section 14.1(D) of the Prime Lease, if Tenant sublets any part of the Premises, then with respect to the space so subleased, Tenant shall pay to Landlord fifty percent (50%) of the positive difference, if any, between (i) all Subrent (as defined in the Prime Lease) paid by the subtenant to Tenant, less (ii) the sum of all Rent and additional rent allocable to the space sublet and all Permitted Transfer Costs (as defined in the Prime Lease) related to such sublease. Such amount shall be paid to Landlord on the same basis, whether periodic or in lump sum, that such Subrent is paid to Tenant by its subtenant. In calculating Landlord's share of any agreement pertaining periodic payments, all Permitted Transfer Costs shall be first recovered by Tenant.
B. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not as a guarantor or surety to the Transfer, except for Landlord’s written consent to the same;same extent as though no assignment or subletting had been made.
(j) C. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials may enter into a Permitted Transfer (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy 14.1(F) of the Premises, all Prime Lease) without Landlord's prior written consent in accordance with the terms and provisions of Section 14.1(F) of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Prime Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Sublease (8x8 Inc /De/)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of thereof nor encumber its interest under in this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)unless it first complies with this Article 13. Any Transfer other than an Allowable Transfer shall assignment or subletting made without compliance with the provisions of this Article 13 will be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingvoid.
13.02 Provided that (a)any Mortgagee, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfersole and unreviewable discretion, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior consents to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever subletting (including, without limitation, a premium rental for a sublease the assignee or lump sum payment for an assignmentsubtenant, but excluding Tenant’s reasonable costs as the case may be), (b) Tenant is not then in marketing and subleasing the Premisesbreach or default (beyond any applicable cure period) in excess of any of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) material terms or conditions of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(ic) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s gives prior written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing proposed assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below)subletting, certified by the proposed transferee, assignee which consent will not be unreasonably withheld or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionallydelayed, Tenant shall deliver will be entitled to Landlordsublet the Demised Premises or a portion thereof, on or before the date any proposed transfereeto assign this Lease, assignee or sublessee takes occupancy of the Premises, all of the items relating but only in accordance with and subject to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be voidArticle 13.
25.6. The consent by Landlord (a) If Tenant desires to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of assign this Lease or to sublet all or a consent part of the Demised Premises for all or a portion of the balance of the Term, it must, prior to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets entering into such assignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("TENANT'S NOTICE") which notice will contain (i) the Premises name, address and financial information of the proposed assignee or any potion thereofsubtenant, Tenant hereby immediately (ii) the full and irrevocably assigns to Landlordcomplete terms and conditions of the assignment or subletting and, as security for Tenant’s obligations under this Lease, all rent from any such in the case of subletting, the exact space to be sublet, (iii) the amount of rental and appoints all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord as assignee and attorney-in-fact for or Mortgagee requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within ten (10) days of Landlord's receipt of Tenant's Notice and Landlord (or Tenant will supply same within a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentreasonable time.
Appears in 1 contract
Assignment or Subletting. 25.1. Except A. Subject to Prime Landlord's consent if required under the Prime Lease, Subtenant shall have the right with Sublandlord's prior consent, which consent shall not be unreasonably withheld, conditioned or delayed except as hereinafter providedset forth below in this Section 11, Tenant shall notto: (i) assign, either voluntarily convey, mortgage, hypothecate, pledge, ---------- encumber or otherwise transfer, voluntarily, involuntarily, by operation of Applicable Lawslaw or otherwise, directly this Sublease or indirectly sell, hypothecate, assign, pledge, encumber any interest hereunder; (ii) allow any transfer thereof or otherwise transfer this Lease, any lien upon Subtenant's interest by operation of law or otherwise; (iii) further sublet the Premises or any part hereof thereof; (eachiv) list the Premises or any part thereof as available for assignment or sublease with any broker or agent or otherwise advertise, post, communicate or solicit prospective assignees or subtenants through any direct or indirect means; or (v) permit the occupancy of the Premises or any part thereof by anyone other than Subtenant (any action described in clauses (i) through (v) above is referred to herein as a “"Transfer”" -------- and the transferee of a Transfer is a "Transferee"). The following shall each ---------- be deemed a Transfer for purposes of this Section: (a) any transfer (or sequence of related transfers resulting, in the aggregate, in the transfer) of 50% or more of the beneficial ownership of Subtenant; (b) any dissolution, merger, consolidation or other reorganization of Subtenant; and (c) the sale of 50% or more in the aggregate of the value of the assets of Subtenant. Notwithstanding the foregoing, Subtenant may collaterally assign, without Landlord’s prior written consentfurther consent of Sublandlord, its interest in this Sublease to secure its senior credit facilities.
B. Any Transfer consummated without Sublandlord's consent shall be deemed void ab initio and the Transferee shall acquire no rights and neither Sublandlord nor Prime Landlord shall recognize any such transfer.
C. In no event shall Sublandlord be obligated to consider a consent to any proposed Transfer if a Subtenant Event of Default (as defined in Section 24) ---------- then exists under this Sublease, or a fact or condition exists, which but for the giving of notice or the passage of time would constitute a Subtenant Event of Default. Notwithstanding anything to the contrary herein, Sublandlord shall not, under any circumstances, be obligated to consent to any Transfer by Tenant and Sublandlord's withholding of consent shall be deemed reasonable if: (i) Prime Landlord's consent to such Transfer is required under the Prime Lease and Prime Landlord may does not unreasonably withholdconsent to such Transfer; provided, however, that Tenant or (ii) the proposed Transfer is not permitted under the Prime Lease. Sublandlord shall have the right to assign all or require any portion proposed Transferee to deposit two (2) months' Rent as a security deposit with Sublandlord as a condition to the effectiveness of such proposed Transfer. Without limiting the generality of the foregoing, it shall be deemed reasonable for Sublandlord to deny consent if: [Sublease of Entire Premises] -----------------------------
(1) The financial strength of the proposed Transferee, both in terms of net worth and in terms of reasonably anticipated cash flow over the Term, is less than Subtenant's financial strength as of the Commencement Date; or
(2) The proposed Transferee is of a character and engaged in a business such as are not in keeping with the standards of Prime Landlord with respect to the Building and its interest occupancy.
D. Unless otherwise agreed in writing by Sublandlord, no Transfer whatsoever shall release Subtenant from Subtenant's obligations and liabilities under this Lease Sublease or sublet alter the primary liability of Subtenant to pay all Rent and to perform all obligations to be paid and performed by Subtenant as required under this Sublease. No Transfer shall amend or modify this Sublease in any portion of the Premises without Landlord’s consent to any parentrespect, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable and every Transfer shall be referred subject and subordinate to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant Sublease and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Prime Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or rent by Sublandlord from any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver by Sublandlord of any of the provisions provision of this Lease or a Sublease. Consent to one Transfer shall not be deemed consent to any subsequent Transfer.
25.8. [Intentionally omitted]
25.9Subtenant shall pay to Sublandlord all reasonable costs and shall reimburse Sublandlord for all reasonable expenses incurred by Sublandlord in connection with any Transfer requested by Subtenant. If Tenant sublets any Transferee of Subtenant defaults in the Premises or performance of any potion thereof, Tenant hereby immediately and irrevocably assigns obligation to Landlord, as security for Tenant’s obligations be performed by Subtenant under this LeaseSublease, all rent from any Sublandlord may proceed directly against Subtenant without the necessity of exhausting remedies against such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentTransferee.
Appears in 1 contract
Sources: Sublease Agreement (Pitney Bowes Office Systems Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld or delayed.
25.2 Tenant may, without Landlord’s 's prior written consentconsent and without constituting an assignment or sublease hereunder, which sublet the Premises or assign this Lease to (a) an entity controlling, controlled by or under common control with Tenant, (b) a successor entity related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action, or (c) a purchaser of substantially all of Tenant's assets located in the Premises. A sale or transfer of Tenant's capital stock shall not be deemed an assignment, subletting or any other transfer of the Lease or the Premises. Notwithstanding the foregoing, any subletting or assignment pursuant to this Section 25.2 must be part of a legitimate business transaction and not designed to avoid the requirement of obtaining Landlord's consent Landlord may not unreasonably withhold; provided, however, that to a subletting or assignment pursuant to other provisions of this Article 25.
25.3 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet sublease all or any portion of the Premises without Landlord’s consent to any parentan entity whose net worth and liquid assets are equal or greater than Tenant's immediately prior to the assignment, subsidiary or affiliate of Tenant; or any party and further provided that results from a merger or consolidation of Tenant; or any party that acquires all or substantially the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the assets or stock covenants and agreements in this Lease arising after the effective date of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the transfer, then Landlord upon receipt of proof of the foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the sublease or assignment.
25.2. 25.4 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2 or 25.3, then, then at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.5 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its reasonable determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor's net worth and liquid assets are equal to or greater than Tenant's immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and (ii) any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under this Section 25.5, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent be bound by (as to an assignment) or be subject to (as to a Subject Transfer, Landlord may require any or sublease) all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.6 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.7 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.8 If Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, except during the existence of an act of default by Tenant beyond all applicable notice and cure periods, Tenant shall have the right to collect such rent.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets 25.10 Any sublease of the Premises or any potion thereofshall be subject and subordinate to the provisions of this Lease, Tenant hereby immediately shall not extend beyond the term of this Lease, and irrevocably assigns shall provide that the sublessee shall attorn to Landlord, as security for Tenant’s obligations under at Landlord's sole option, in the event of the termination of this Lease, all rent from . Landlord and any such subletting, lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and appoints Landlord as assignee and attorney-nondisturbance agreement in the form set forth in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1Lessee shall not assign this lease or any ------------------------- interest herein and shall not sublet the premises or any part thereof or any right or privilege appurtenant thereto or permit any other person (the agents and servants of Lessee excepted) to occupy or use the premises or any portion thereof without the written consent of Lessor first being had and obtained, which consent shall not be unreasonably withheld if the proposed assignee or subtenant meets Lessor's financial requirements, is of good business reputation, would be compatible with the other tenants of the building and meets such other reasonable requirements as may be established by Lessor. Except A consent to one assignment, subletting, or occupation and use by another person shall not be deemed to be a consent to any other or further assignment, subletting, or occupation nor a waiver of the provisions of this paragraph, except as hereinafter providedto the specific instance covered thereby. Any such assignment, Tenant subletting or occupation without consent shall not, either voluntarily or be void and shall at the option of Lessor terminate this lease. This lease and any interest in it shall not be assignable as to the interest of Lessee by operation of Applicable Lawslaw without the written consent of Lessor. In the case of an individual Lessee, directly the subsequent incorporation of Lessee's business and transfer of rights hereunder to a corporation shall constitute a prohibited assignment within the meaning of this paragraph. In the event Lessor shall consent to any assignment or indirectly sellsubletting, hypothecateLessee shall in all events remain fully liable on this lease and shall not be released from performing any of the terms, assigncovenants, pledge, encumber or otherwise transfer and conditions of this Lease, or sublet lease. In the Premises event Lessee shall assign this lease or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all interest herein or any portion of its interest under this Lease or sublet all or sublease any portion of the Premises premises, then, on a monthly basis, 50% any sums of money, or other economic consideration received by Lessee from the transferee, including higher rent, bonuses, key money or the like, which exceed, in the aggregate, the total sums which Lessee pays Lessor under this lease with respect to the premises so subleased or assigned (after deducting from such consideration received by Lessee the reasonable costs to Lessee to effectuate the assignment or sublease, including without Landlord’s consent limitation, reasonable attorneys' fees, brokerage or leasing commissions, and remodelling costs) shall be payable to Lessor as additional rental under this lease without affecting or reducing any parent, subsidiary or affiliate other obligation of Tenant; or any party Lessee hereunder. The agreement to pay such sums is the result of negotiations between the parties hereto in which the parties agree that results from a merger or consolidation the delivery of Tenant; or any party that acquires all or substantially all said sums to Lessor and has been bargained for by Lessee in consideration of the assets or stock of Tenant (an “Allowable Transfer”)other economic benefits provided by Lessor to Lessee under this lease. Any Transfer other than an Allowable Transfer shall be referred Lessee agrees to herein as a “Subject Transfer”)reimburse Lessor for all reasonable expenses, including reasonable attorneys' fees, incurred by Lessor in connection with any requested assignment. Notwithstanding the foregoing, in no event shall Tenant be released from any of Lessor agrees to give its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect consent to any other Transfersublease or assignment of this lease to (i) a subsidiary, but not more than ninety affiliate, division or corporation controlling, controlled by or under common control with Lessee, (90ii) days in any eventa successor corporation related to Lessee by merger, prior to consolidation, non-bankruptcy reorganization or government action, (iii) a purchaser of substantially all of Lessee's assets located on the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usepremises, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (aiv) Landlord agrees to reasonably evaluate any proposed transferee’sInvision Company, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event all events Lessee shall Landlord or its Lenders, successors or assigns be obligated to accept remain liable hereunder and any such attornment;
(f) Any consent to such Transfer assignee and/or sublessee shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined agree in Section 39.7 below), certified by the proposed transferee, assignee or sublessee writing to be true jointly and correct, that the proposed transferee, assignee or sublessee intends severally liable with Lessee with respect to use or store in the PremisesLessee's obligations hereunder. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions For purposes of this Section 25 shall be void.
25.6. The consent by Landlord to lease, a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee sale of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant Lessee's capital stock shall not be deemed a waiver of any of the provisions an assignment, subletting or other transfer of this Lease lease or a consent to any Transferthe premises requiring Lessor's consent.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Office Lease (Evolve Software Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedA. Lessee shall not have the right to assign or pledge this Lease or to sublet the whole or any part of the Premises, Tenant shall not, either whether voluntarily or by operation of Applicable Lawslaw, directly or indirectly sellpermit the use or occupancy of the Premises by anyone other than Lessee, hypothecateor assign this Lease for security purposes, assignwithout the prior written consent of Lessor, pledgeand such restrictions shall be binding upon any assignee or sublessee to which Lessor has consented. In the event Lessee desires to sublet the Premises, encumber or otherwise transfer any portion thereof, or assign this Lease, Lessee shall give written notice thereof to Lessor at least 90 days but no more than 180 days prior to the proposed commencement date of such subletting or sublet assignment, which notice shall set forth the name of the proposed sublessee or assignee, the relevant terms of any sublease, and copies of financial reports and other financial information of the proposed sublessee or assignee. Notwithstanding any permitted assignment or subletting, Lessee shall at all times remain directly and primarily responsible and liable for the payment of the rent herein specified and for compliance with all of its other obligations under this Lease. Upon the occurrence of an "event of default" (as hereinafter defined), if the Premises or any part hereof (eachthereof are then sublet, Lessor, in addition to any other remedies provided herein or by law, may collect directly from such sublessee all rents due and becoming due to Lessee under such sublease and apply such rent against any sums due to Lessor from Lessee hereunder. No such collection directly from an assignee or sublessee shall be construed to constitute a “Transfer”)novation or a release of Lessee from the further performance or Lessee's obligations hereunder.
B. In addition to Lessor's right to approve any sublessee or assignee, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant Lessor shall have the right option, in its sole discretion, in the event of any proposed subletting or assignment, to assign all terminate this Lease, or any portion in the case of its interest under this Lease or sublet all or any a proposed subletting of less than the entire Premises, to recapture the portion of the Premises without Landlord’s consent to any parentbe sublet, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all as of the assets date the subletting or stock of Tenant (an “Allowable Transfer”)assignment is to be effective. Any Transfer other than an Allowable Transfer The option shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty exercised by Lessor's giving Lessee written notice thereof within sixty (2060) days following Lessor's receipt of Lessee's written notice as required above. If this Lease shall be terminated with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the entire Premises the Term shall end on the date when Tenant desires stated in Lessee's notice as the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character date of the proposed transferee, assignee sublease or sublessee; assignment as if that date had been originally fixed in this Lease for the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions expiration of the proposed Transfer, all in such detail as Landlord shall reasonably requireTerm. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to If Lessor recaptures only a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease rent during the unexpired Term;
(b) Tenant Term shall provide Landlord with evidence reasonably satisfactory to Landlord that abate, proportionately, based on the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status rent as of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, date immedia▇▇▇▇ prior to deductions for such recapture. Lessee shall, at Lessee's own cost and expense, discharge in full any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists outstanding commission obligation or the part of cash paid Lessor with respect to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such commissions which may be due and owing as a result of any proposed transfereeassignment or subletting, assignee whether or sublessee shall agree not the Premises are captured pursuant hereto and rented by Lessor to attorn to Landlord the proposed lessee or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordother lessee.
(h) Such proposed transferee, assignee C. Consent by Lessor to any assignment or sublessee’s use of the Premises subletting shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written include consent to the same;
(j) Tenant shall deliver to Landlord one executed copy assignment or transferring of any and all written instruments evidencing lease renewal option rights or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy space option rights of the Premises, all special privileges or extra services granted to Lessee by this Lease, or addendum or amendment thereto of the items relating letter or agreement (and such options, rights, privileges or services shall terminate upon such assignment), unless Lessor specifically grants in writing such options, rights, privileges or services to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5sublessee. Any Transfer that is sale, assignment, mortgage, transfer of this Lease or subletting which does not in compliance comply with the provisions of or this Section 25 Article shall be void.
25.6. The consent D. In the event that Lessee sells, sublets, assigns or transfers this Lease and at any time receives periodic rent and/or other consideration which exceeds that which Lessee would at that time be obligated to pay to Lessor, Lessee shall pay to Lessor 100% of the gross increase in such rent as such rent is received by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full Lessee and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance 100% of any other termconsideration received by Lessee from such sublessee in connection with such sublease, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver in the case of any of the provisions an assignment of this Lease or a consent by Lessee, Lessor shall receive 100% of any consideration paid to any TransferLessee by such assignee in connection with such assignment.
25.8. [Intentionally omitted]E. Should Lessor agree to authorize and execute an assignment or sublease agreement, Lessee will pay to Lessor on demand a sum equal to all of Lessor's costs, including attorneys' fees, incurred in connection with such assignment or transfer.
25.9. If Tenant sublets F. The nature of the occupancy, the use and the manner of use of the Premises by the proposed subtenant or assignee shall not impose on Lessor any potion thereofrequirements of the Americans with Disabilities Act (ADA) of 1990 in excess of those requirements imposed on Lessor in the absence of such proposed subtenant or assignee or such occupancy, Tenant hereby immediately and irrevocably assigns to Landlorduse or manner of use, as security for Tenant’s obligations under this Lease, all rent from any unless such subletting, and appoints Landlord as proposed subtenant or assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right agreed to collect comply with each of such rentexcess requirements and, at Lessor's option, shall have furnished Lessor with such security as Lessor may require to assure that such subtenant or assignee shall so comply.
Appears in 1 contract
Sources: Lease (Nutrisystem Com Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet agrees to use and occupy the Premises throughout the entire term hereof for the purpose herein specified and for no other purposes, in the manner and to substantially the extent now intended, and not to transfer or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Landlord in each instance. Except for an assignment to Tenant's Affiliate (as hereinafter defined), Tenant will seek such consent of Landlord by a written request therefore, setting forth such information as Landlord may deem necessary. For the purposes of this Lease, "Tenant's Affiliate" means a corporation then owned or controlled by Tenant with financial wherewithal and net worth acceptable in all respects to Landlord. Tenant agrees to provide Landlord with prior written notice, a copy of any proposed assignment documentation and any other information requested by Landlord regarding Tenant's Affiliate prior to a transfer to Tenant's Affiliate. Landlord agrees not to withhold consent unreasonably. Consent by Landlord to any assignment of this Lease or to any subletting of the Premises without will not be a waiver of Landlord’s consent right under this Article as to any parent, subsidiary subsequent assignment or affiliate subletting. Landlord’s rights to assign this Lease are and will remain unqualified. No such assignment or subleasing will relieve the Tenant from any of Tenant; ’s obligations in this Lease contained, nor will any assignment or any party that results from a merger sublease or consolidation other transfer of Tenant; this Lease be effective unless the assignee, subtenant or any party that acquires all transferee at the time of such assignment, sublease or substantially transfer, assumes in writing for the benefit of Landlord, its successors or assigns, all of the assets or stock terms, covenants, and conditions of this Lease thereafter to be performed by Landlord and agrees in writing to be bound thereby. Should Tenant sublease in accordance with the terms of this Lease, fifty percent (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall 50%) of any increase in rental received by Tenant over the per square foot rental rate which is being paid by Tenant will be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Landlord, which increase will be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Landlord under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Commercial Lease (Aetrium Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided16.01 Tenant agrees not to sell, Tenant shall notassign, either voluntarily or by operation of Applicable Laws, directly or indirectly sellmortgage, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this Lease, Lease or any estate or interest hereunder and not to sublet the Premises or any part hereof (each, a “Transfer”), or parts thereof without the previous written consent of Landlord’s prior written consent, which consent by Landlord shall not be unreasonably withheld. If Tenant violates the provisions of this Article 16, Landlord may accept from any assignee, sublessee, licensee, concessionaire or anyone who claims a right to the interest of Tenant under this Lease or who occupies any part or the whole of the Premises the payment of Minimum Rent and Additional Rent and/or the performance of any of the other obligations of Tenant under this Lease, but acceptance shall not unreasonably withholdbe deemed to be a waiver by Landlord of the breach by Tenant of the Provisions of this Article 16, nor a recognition by Landlord that any such assignee, sublessee, licensee, concessionaire, claimant or occupant has succeeded to the rights of Tenant hereunder, nor a release by Landlord of Tenant from further performance by Tenant of the covenants on Tenant's part to be performed under this lease; provided, however, that Tenant the net amount of rent collected from any such assignee, sublessee, licensee, concessionaire, claimant or occupant shall have be applied by Landlord to the right rent to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s be paid hereunder. Any consent by landlord to any parentsuch assignment, subsidiary transfer, subletting, license or affiliate concession or other matter or thing contained in this Article 16 shall not in anyway be construed to relieve Tenant from obtaining the prior consent of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord to any other Transferor further such assignment, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenantlicense, and Landlord (concession, matter or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentthing.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant TENANT agrees that it shall not, either without the prior written consent of the LANDLORD, which LANDLORD may not unreasonably withhold, hypothecate, pledge or otherwise encumber this Lease, assign its interest herein, or make any sublease or permit occupancy of the Premises or any part thereof by anyone other than the TENANT, voluntarily or by operation of Applicable Lawslaw. If TENANT shall be a corporation, directly any transfer of a majority of the capital stock of said corporation shall be deemed to be an assignment of this Lease. If TENANT shall be a partnership or indirectly selllimited partnership a transfer of any partnership interest therein shall be deemed such an assignment and if TENANT shall be a Trust, hypothecateany transfer of beneficial interest therein shall be such an assignment. Notwithstanding any assignment or subletting by TENANT, TENANT shall remain primarily liable for the performance and observance of the covenants and agreements herein contained on the part of TENANT to be performed and observed, such liability to be joint and several with that of any assignee or sublessee, as the cage may be, any such assignee or sublessee by its acceptance of an interest in or under this Lease thereby agreeing so to be bound. Without limitation, it is expressly understood and agreed that no assignment of TENANT'S interest in this Lease or sublease shall be effective until such time as TENANT shall deliver to LANDLORD an agreement from the assignee to sublessee, which agreement shall be reasonably satisfactory to LANDLORD in form and substance and shall provide that the assignee agrees with LANDLORD to be liable as aforesaid. If TENANT shall request permission to sublet or assign, pledgeLANDLORD may condition its consent upon an agreement by TENANT to pay to the LANDLORD, encumber as Addition Rent, an amount equal to one half of all payments received by TENANT in consideration thereof, whether as rent or otherwise transfer this Leaseotherwise, or sublet in excess of the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant Base and Additional Rent reserved hereunder after allowing TENANT to recover the costs of subletting. LANDLORD furthermore shall have the right in such case to assign all or any portion of its interest under notify TENANT that LANDLORD elects to terminate this Lease and to deal with TENANT'S proposed sublessee or sublet all assignee for a direct lease, such termination to be effective upon the execution by LANDLORD of a direct Lease with such sublessee or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, assignee in no event shall Tenant be which case TENANT is released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days Lease with respect to a sublease the area at issue. Alternatively, LANDLORD shall have the right in such case to terminate this Lease with the same force and at least thirty (30) days with respect to any other Transfer, effect as if the term of the Lease had expired on the date fixed herein for such expiration but not more than ninety (90) days in any event, prior only as to the date when Tenant desires the Transfer area to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character sublet. TENANT does hereby release LANDLORD of the proposed transferee, assignee or sublessee; the Assignment Date; and from any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions claim which TENANT may have by reason of the proposed Transfer, all LANDLORD'S activity in dealing with such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6extent permitted by law. The consent by Landlord to a Transfer above shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent apply to any further Subject Transfer, nor shall it release Tenant assignment or any proposed transferee, assignee or sublessee of Tenant from full sublease between TENANT and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease its affiliates, subsidiaries, partners, parent corporations, joint ventures or a consent to any Transfersister corporations.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, The Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all the Premises, or any portion thereof, unless it has obtained the prior written consent of the Premises without Landlord’s , which consent shall not be unreasonably withheld, delayed or subject to any parent, subsidiary or affiliate of Tenant; or any party that results from conditions. Any request for the Landlord's consent shall be accompanied by a merger or consolidation of Tenant; or any party that acquires all or substantially all true copy of the assets offer to take such assignment or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior all information available to the date when Tenant desires Tenant, and any additional information requested by the Transfer Landlord, as to be effective (the “Assignment Date”)reputation, Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character financial standing and business of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requiresubtenant. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. The Landlord, in determining whether consent should be given to a proposed Subject Transferacting reasonably, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord not be deemed to be unreasonable for declining to unreasonably withholding its consent to a Transfer to a transferee, if it refuses such consent upon the basis that the proposed assignee or sublessee subtenant is an existing tenant of poor reputationthe Building. If such consent is given the Tenant shall assign or sublet, lacking financial qualificationsas the case may be, seeking a change only upon the terms set out in the Permitted Useoffer submitted to the Landlord. Whether or not the Landlord consents to any request as aforesaid, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of to the Landlord all of such excess to Landlord, prior to deductions for any transaction reasonable costs incurred by Tenantthe Landlord, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatreasonable legal fees, in considering any such request and in completing any of the event Landlord gives documentation involved in implementing any such proposed transferee, assignee assignment or sublessee notice that Tenant is in Default under this Leasesublease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly costs not to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) exceed $350.00. Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use advertisement of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy availability of the Premises, all or a portion thereof, for assignment or sublease without the written approval of the items relating Landlord is prohibited, which approval may be withheld by the Landlord in its absolute discretion, but acting reasonably. Notwithstanding anything herein to Hazardous Materials the contrary, the Tenant shall be entitled to assign this Lease or sublet the whole or any part of such proposed transfereethe Premises, assignee without the Landlord's consent, but upon written notice to the Landlord, to (i) a subsidiary, parent or sublessee affiliated corporation of the Tenant (within the meaning of the Business Corporations Act (Ontario)); and (ii) a corporation formed as described in Section 39.2.
25.5a result of a merger or amalgamation of the Tenant (within the meaning of the Business Corporations Act (Ontario)) with another corporation. Any Transfer that is not in compliance with For the provisions purpose of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant Lease, the sale or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to transfer of the Tenant's capital stock through any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunderpublic exchange, or the acceptance redemption or issuance of performance additional stock of any other term, covenant or condition thereof, from any person or entity other than Tenant class shall not be deemed a waiver of an assignment, subletting or any of the provisions other transfer of this Lease or a consent to any Transferthe Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease Agreement (Ids Intelligent Detection Systems Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the prior written consent of Landlord, or which consent shall not be unreasonably withheld, and not to sublet the Premises or any part hereof (eachof the Premises or to allow anyone to use or to come in, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all through or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s 's consent. Any attempted subletting or assignment without Landlord's consent shall be voidable in Landlord's sole discretion and, at Landlord's option, shall grant Landlord the right to terminate this Lease or to exercise any parentof the other rights or remedies it may have hereunder. If consented to, subsidiary no assignment or affiliate subletting shall be binding upon Landlord unless the sublessee or assignee shall deliver to Landlord an instrument (in recordable form, if Landlord so requests) containing an agreement of assumption of all of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its 's obligations under this Lease. In no event may Tenant assign, sublet or otherwise transfer this Lease or any interest in this Lease at any time while an Event of Default exists hereunder. Landlord may, in its reasonable discretion, refuse to give its consent to any proposed subletting or assignment or exercise its other rights hereunder for any reason, including, but not limited to, the financial condition, creditworthiness or business reputation of the proposed sublessee or assignee, the prevailing market or quoted rental rates for space in the Building or other comparable buildings, and the proposed use of the Premises by, or business of, the proposed sublessee or assignee. One consent by Landlord to a subletting or assignment will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Neither the consent to any assignment or subletting nor the acceptance of rent from an assignee, subtenant or occupant will constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. A dissolution, merger, consolidation, or other reorganization of Tenant, and the issuance or transfer of twenty (20%) percent or more of the voting capital of Tenant to persons other than shareholders as of the beginning of such period within any twelve (12) month period, shall each be deemed to be an assignment of this Lease, and as such, prohibited without Landlord's prior written consent.
25.2. 13.02 In the event Tenant desires to effect sublet all or a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any Premises or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under assign this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment give notice to Landlord setting forth the terms of the proposed subletting or assignment together with such financial and other information Landlord may request. Landlord shall be made upon have the right, exercisable by written notice to Tenant within sixty (60) days after receipt by Tenant of such cash payment;
Tenant's notice, (ei) The proposed transfereeto consent or refuse to consent thereto in accordance with Paragraph 13.01 above, assignee or sublessee shall agree that(ii) to terminate this Lease which termination may, in Landlord's sole discretion, be conditioned upon Landlord and the event Landlord gives such proposed transferee, subtenant/assignee or sublessee notice that Tenant is in Default under this entering into a new Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee13.03 Upon the occurrence of an Event of Default, assignee as defined under Section 18, if all or sublessee’s use any part of the Premises shall not require are then sublet or assigned, Landlord, in addition to any change other remedies provided by this Lease or by law, may, at its option, collect directly from the sublessee or assignee all rent becoming due to Landlord by reason of the Permitted Use;
(i) subletting or assignment. Any collection by Landlord from the sublessee or assignee shall not be bound by any provision construed to constitute a waiver or release of any agreement pertaining to Tenant from the Transfer, except for Landlord’s written consent to further performance of its obligations under this Lease or the same;making of a new Lease with such sublessee or assignee.
(j) 13.04 In the event Tenant shall deliver to Landlord one executed copy of any and sublet all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy a portion of the PremisesPremises or assign this Lease, all of the items relating to Hazardous Materials sums of money or other economic consideration received by Tenant or its affiliates, directly or indirectly, as a result of such proposed transfereesubletting or assignment, assignee whether denominated as rent or sublessee as described otherwise, which exceed in Section 39.2.
25.5. Any Transfer the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that is not in compliance with portion of the provisions of this Section 25 Premises subject to such sublease) shall be void.
25.6. The consent by payable to Landlord to a Transfer shall not relieve Tenant as additional rent under this Lease without effecting or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to reducing any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee other obligation of Tenant from full and primary liability under this Leasehereunder.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1A. Tenant may not assign this Lease in whole or in part, nor sublet all or any part of the Premises, without the prior written Consent of Landlord which shall not be unreasonably withheld. Except as hereinafter providedIn all circumstances of assignment or subletting, the assignee or subtenant shall assume in writing the obligations of Tenant hereunder and the existing Tenant and guarantor hereunder (if any) and each subsequent assignee, and guarantor shall remain jointly and severally liable under this Lease. Consent to any particular assignment or subletting shall not be deemed consent to any further or subsequent assignment or subletting.
B. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer assign this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to time and the date when Tenant desires the Transfer rent to be effective (the “Assignment Date”), received by Tenant shall provide written notice pursuant to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) subletting is in excess of the rental then applicable rent per square foot hereunder, Landlord and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all split equally the entire amount of such excess, which excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made due and payable from time to time by Tenant promptly upon receipt by Tenant of such cash payment;
(e) The proposed transferee, payment of rent by the assignee or sublessee subtenant. Any excess shall agree thatbe reduced by expenses incurred by Tenant, such as brokerage, etc.
C. If Tenant wishes to assign this Lease or sublet to any party, Tenant first shall give written notice to Landlord of such intention ("Tenant's Notice"), specifying the name of the proposed assignee or sublessee, the name of and character of its business, the terms of the proposed assignment or sublease, and shall provide Landlord with such other information as Landlord requests including financial statements in form acceptable to Landlord.
D. Landlord may, within fifteen (15) days after its receipt of Tenant's Notice, by notice to Tenant ("Landlord's Notice"), either consent not to be unreasonably withheld to or reject the proposal, or Landlord may terminate this Lease as of a date selected by Tenant, in the event only of a proposed assignment, (except Landlord gives may not terminate in connection with the sale of Tenant's business,) such proposed transferee, assignee or sublessee notice date of termination having the same effect as if that Tenant is in Default under date were the original expiration date of this Lease, such proposed transferee, assignee or sublessee shall thereafter make with all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability rents being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, apportioned and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (adjusted as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions date of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.termination
Appears in 1 contract
Sources: Lease Agreement (Teardrop Golf Co)
Assignment or Subletting. 25.1. Except as hereinafter provided, (a) Tenant shall not, either not (and shall not permit any Person) voluntarily or involuntarily, by operation of Applicable Lawslaw or otherwise: (i) transfer, directly or indirectly sellassign, mortgage, encumber, pledge, hypothecate, assign, pledge, encumber or otherwise transfer assign all or any of its interest in this Lease, or (ii) sublet or permit the Premises Premises, or any part hereof thereof, to be used by others including, but not limited to concessionaires or licensees, or (each, a “Transfer”iii) issue new stock (or partnership shares or membership interests), create additional classes of stock (or partnership shares or membership interests), or sell, assign, hypothecate or otherwise transfer the outstanding voting stock (or partnership shares or membership interests) so as to result in a change in the present control of Tenant or any permitted Transferee, provided, however, that this subparagraph (iii) shall not be applicable to Tenant if it is a publicly owned corporation whose outstanding voting stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded actively in the over-the-counter market, or (iv) sell, assign or otherwise transfer all or substantially all of Tenant’s or any permitted Transferee’s assets; without the prior consent of Landlord’s prior written consent, in each instance, which consent Landlord may withhold in its sole and absolute discretion. All of the foregoing transactions shall be referred to collectively or singularly as a “Transfer”, and the Person to whom T▇▇▇▇▇’s interest is transferred shall be referred to as a “Transferee.”
(b) Any Transfer without Landlord’s consent shall not unreasonably withhold; providedbe binding upon Landlord, howeverand shall confer no rights upon any third Person. Each such unauthorized Transfer shall, that without notice or grace period of any kind, constitute a Default by Tenant shall have the right to assign all or any portion of its interest under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Section shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rent obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. No reference in this Lease to assignees, concessionaires, subtenants or sublet all or any portion licensees shall be deemed to be a consent by Landlord to the occupancy of the Premises without by any such assignee, concessionaire, subtenant or licensee.
(c) Landlord’s consent to any parentTransfer shall not operate as a waiver of, subsidiary or release of Tenant from, T▇▇▇▇▇’s covenants and obligations hereunder; nor shall the collection or acceptance of Rent or other performance from any Transferee have such effect. Rather, Tenant shall remain fully and primarily liable and obligated under this Lease for the entire Term in the event of any Transfer, and in the event of a Default by the Transferee, Landlord shall be free to pursue Tenant, the Transferee, or both, without prior notice or demand to either.
(d) Tenant shall reimburse Landlord for attorney’s fees and any other out-of-pocket expenses incurred by Landlord involved with the review, processing or preparation of any documentation in connection with a Transfer, whether or not Landlord’s consent to such Transfer is required or obtained.
(e) Upon Tenant’s request for approval for any Transfer, Landlord may elect to terminate this Lease by notice to Tenant, which termination shall be effective on the date set forth in such notice, but no earlier than sixty (60) days after the date of that notice.
(f) In the event of a Transfer by Tenant, Tenant shall pay to Landlord, as Additional Rent, as and when received by T▇▇▇▇▇, an amount equal to the difference between (i) all sums paid to Tenant or its agent by or on behalf of such Transferee, and (ii) the Monthly Base Rent and Additional Rent paid by Tenant under this Lease and attributable to the portion of the Premises that is the subject of such Transfer
(g) Notwithstanding anything in the foregoing to the contrary, L▇▇▇▇▇▇▇’s consent shall not be required with respect to any Transfer to any of the following types of entities (each an “Permitted Transferee”): (a) an entity that results from an organizational change of Tenant or the division of Tenant into two or more entities; (b) an affiliate of Tenant, meaning any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Tenant; (c) an entity with which Tenant or its corporate successors has merged or consolidated in accordance with applicable statutory provisions governing merger and consolidation of business entities; or any party that results from a merger or consolidation of Tenant; or any party that (d) an entity which acquires all or substantially all of the assets or stock membership interest of Tenant (an “Allowable Transfer”Landlord is expressly aware that Tenant is subject to a binding agreement whereby ownership of Tenant shall transfer 100% to Danam Health Inc. during the course of the Term); provided that, in each such case: (a) any such Transfer to a Permitted Transferee is not undertaken primarily for the purpose of avoiding the restrictions on Transfer contained in this Section 7; and (b) Tenant’s obligations hereunder are assumed in writing by any such Permitted Transferee to which this Lease is Transferred. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder. Any such Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Use of the Premises limitation contained in this Lease. No later than ten (10) days after the effective date of any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations permitted under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”Section 7(g), Tenant shall provide written notice furnish to Landlord Landlord: (1) copies of any instrument effecting such Transfer; (2) documentation establishing the “Assignment Notice”) containing information (including references) concerning the character satisfaction of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant requirements and the proposed transferee, assignee or sublesseeconditions set forth herein; and the consideration and all other material terms and conditions (3) evidence of the proposed Transfer, all in such detail insurance as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord required under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Transfer pursuant to this Section 7(f) shall have the right not waive Landlord’s rights as to collect such rentany subsequent Transfer.
Appears in 1 contract
Sources: Lease (Wellgistics Health, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord Tengion may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease Sub-Sublease or sublet all or any portion of the Sub-Subleased Premises without Landlord’s the prior written consent of Corporate Interiors, which consent may not be unreasonably withheld. Any such proposed assignment or sublease shall, however, remain subject to the Lease. Any assignment or sublet attempted without the consent of Corporate Interiors and not made in accordance with the terms of the Sub-Sublease shall be void and shall not confer any rights, benefits or privileges to the attempted grantee, unless ratified or accepted by Corporate Interiors in writing. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law, and/or a transfer by any person or persons controlling Tengion on the date of this Sub-Sublease of such control (whether by transfer of stock, partnership interests or otherwise) to a person or persons not controlling Tengion on the date of this Lease; provided, however, that Corporate Interiors shall not withhold its consent to (A) any parentproperly registered public offering and sale of stock of Tengion conducted in accordance with all applicable securities laws, subsidiary or affiliate (B) transfers of Tenant; stock of Tengion among existing stockholders, their families and heirs and trusts for the benefit of such stockholders, (C) transfers of stock of Tengion on a publicly traded exchange, (D) any original issuance of capital stock the primary purpose of which is to provide investment capital to Tengion, (E) acquisition of all or any party that results from a merger portion of the outstanding securities or ownership interests of Tengion by merger, consolidation or otherwise where the acquiring person or entity has greater net assets than Lessee’s net assets as of Tenant; December 31, 2005 or any party that acquires (F) the sale of all or substantially all of the assets or stock of Tenant Lessee (an “Allowable Transfer”). Any Transfer other including this Agreement) related to the business of Lessee conducted at the Sub-Sublease Premises to a purchaser with greater net assets than an Allowable Transfer shall Lessee as of December 31, 2005, provided the purchaser agrees in writing to be referred to herein as a “Subject Transfer”). Notwithstanding bound by the foregoing, in no event shall Tenant be released from any terms and conditions of its obligations under this Lease.
25.2Sub-Sublease. In the event Tenant desires to effect a Transferof any assignment of this Sub-Sublease made with or without the consent of Corporate Interiors, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant Tengion nevertheless shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining remain liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use performance of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants of this Sub-Sublease. If Corporate Interiors gives its consent, it shall be a condition to effectiveness of the sublease or assignment that a fully executed copy thereof (in form and substance approved by Corporate Interiors) be delivered to Corporate Interiors, and that any assignee execute and deliver to Corporate Interiors an assumption of liability agreement in form reasonably satisfactory to Corporate Interiors, including an assumption by the assignee of all of the obligations of Tengion and the assignee’s ratification of and agreement to be kept bound by all the provisions, waivers, terms and performed by Tenantconditions of this Sub-Sublease. The acceptance If Tengion shall request the consent of Rent Corporate Interiors to any assignment of this Sub-Sublease or any other sum due hereunder, subletting of all or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any part of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by TenantSubleased Premises, Tenant shall have pay and deliver to Landlord as additional rent Corporate Interiors’ costs related thereto, including Corporate Interiors’ reasonable attorneys’ fees. In the right to collect such rentevent of any assignment of this Sub-Sublease made with or without Corporate Interiors’ consent, Tengion nevertheless shall remain liable for the performance of all of the terms, conditions and covenants of this Sub-Sublease.
Appears in 1 contract
Sources: Sub Sublease Agreement (Tengion Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion part of the Premises without Landlord’s consent Premises, or to assign this Lease, to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock shares of Tenant (Tenant, or to a parent, subsidiary, or other affiliate of Tenant, provided that the subtenant or assignee first executes, acknowledges and delivers to Landlord an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall agreement whereby the subtenant or assignee agrees to be referred bound by all of the covenants and agreements in this Lease to herein as a “Subject Transfer”). Notwithstanding the foregoingextent relating to the unexpired term of the 33 Lease and, in no the event shall Tenant of a sublease, the portion of the Premises so sublet, then the consent of Landlord to the sublease or assignment will not be released from any of its obligations under this Leaserequired.
25.2. 25.3 In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee or sublessee other than one set forth in Section 25.2, then at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by assignment or sublease.
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the PremisesPremises which would involve the generation, storage, use, treatment or disposal of Hazardous Materials. If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall be deemed to have approved the request. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualificationsqualification, seeking a change in use which would involve the Permitted Usegeneration, storage, use, treatment or jeopardizing directly disposal of Hazardous Materials in any manner for a purpose prohibited by any applicable Law, so long as Landlord is reasonable in making its determination based on such factors. Any refusal to consent to such assignment or indirectly sublease shall be in writing and shall state in detail the status of Landlord reason for Landlord's failure to approve the assignment or sublease. As a condition to any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:
(a) Tenant shall remain fully liable under covenants and agreements in this Lease during to the extent relating to the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status term of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatLease and, in the event Landlord gives such proposed transfereeof a sublease, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder the portion of which Tenant has been given notice by Landlordthe Premises so sublet.
(h) Such proposed transferee25.5 Notwithstanding the foregoing, assignee Tenant shall have the right to enter into license or sublessee’s other usage agreements for the use of the Premises shall by third parties without Landlord's consent, provided such agreements do not require any change to entail the Permitted Use;
(i) Landlord shall not be bound by any provision creation of any agreement pertaining to a separate common corridor for the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2licensee.
25.5. 25.6 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.7 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of 34 Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.8 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises and Landlord as assignee, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, before the occurrence and after the subsequent cure of a default in the payment of Basic Annual Rent by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.8. [Intentionally omitted]
25.9. If Tenant sublets 25.10 Any sublease of the Premises or any potion thereofshall be subject and subordinate to the provisions of this Lease, Tenant hereby immediately shall not extend beyond the term of this Lease, and irrevocably assigns shall provide that the sublessee shall attorn to Landlord, as security for Tenant’s obligations under at Landlord's sole option, in the event of the termination of this Lease, all rent from . Landlord and any such subletting, lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and appoints nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Globix Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, mortgage or encumber this Lease nor sublet or otherwise transfer this Lease, or sublet permit the Leased Premises or any part hereof (each, a “Transfer”)thereof to be used by others, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished unreasonably withheld, or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6delayed. The consent by Landlord to a Transfer an assignment or subletting shall not be construed to relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s the consent of the Landlord to any further Subject Transfer, nor shall it release Tenant assignment or any proposed transferee, subletting. The consent by Landlord will not be given unless: a) the subtenant or assignee or sublessee of Tenant from full and primary liability assumes the Tenant's obligations under this Lease.
25.7, and b) Tenant remains liable for all its obligations under this Lease, including extensions or renewals provided for herein. Notwithstanding Nor will consent be given if Tenant is in default of this Lease. Tenant shall notify Landlord of the name of each proposed assignee or subtenant and shall provide information to Landlord pursuant to the financial standing of the proposed assignee or subtenant and shall offer to surrender such space to Landlord. Any subtenant controlled rent or other gain or profit in excess of the base rent and additional rent then being paid by Tenant pursuant to this Lease realized by Tenant from such assignment or subletting shall be shared by Tenant - 50% and Landlord - 50% as additional rent, except in the case of a sublease or assignment to an affiliate or subsidiary of Tenant, in which case Tenant shall retain 100% of any Transferexcess profit. Tenant shall have the absolute right without the consent of Landlord, but upon notice to Landlord, to assign all of its rights under the Lease to any parent, subsidiary and/or affiliate of Tenant so long as such assignment does not decrease the value of Tenant and provided that Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance obligations of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of under this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If and provided that Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations is not in default under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecatelaw, assign, pledgesell, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any. part thereof, or permit or suffer the Premises or any part hereof (eachthereof to be used or occupied as work space, a “Transfer”)storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent shall not be unreasonably withheld, delayed or conditioned. Landlord may agrees not to unreasonably withhold; provided, however, that Tenant shall have the right withhold consent to assign all or any portion such assignment of its interest under this Lease or sublet subletting of all or any portion of the Premises provided that Tenant requests the same in writing and provided that (i) at the time thereof; Tenant is not in default under this Lease, (ii) Landlord, in its reasonable discretion, determines that the reputation, business, proposed use of the Premises and financial responsibility of the proposed assignee or sublessee, are commercially reasonable, (iii) any assignee or sublessee shall expressly assume all the obligations of this Lease on Tenant’s part to be performed, or in the case of a sublease of less than all of the Premises, assume such obligations with respect to the relevant portion of the Premises, (iv) such consent, if given, shall not release Tenant or any guarantor of Tenant’s obligation hereunder of any of its obligations under this Lease, including without limitation, its obligation to pay Rent, and (v) Tenant shall indemnify and hold Landlord harmless from any brokerage commissions due in connection with such assignment or subletting by virtue of Tenant’s actions. Whether or not such conditions to assignment or subletting are met, Landlord, at its sole option, may elect to (x) terminate this Lease in the case of an assignment, or, (y) in the event of a sublease, the term of which ends during the last year of the Term, terminate this Lease with respect to the portion of the Premises subject to the proposed sublease, on the first day of the second calendar month next succeeding receipt of Tenant’s written request for consent to any parentassignment or subletting, subsidiary to be effective unless Tenant elects to withdraw its request to sublease or affiliate assign, which election, if exercised by Landlord, shall be by written notice to Tenant given within twenty (20) days of receipt by Landlord of Tenant; ’s request for such consent to assign or sublet. If Landlord elects to terminate this Lease in accordance with the foregoing sentence, then Landlord may lease the relevant portion of the Premises to the sublessee or assignee proposed by Tenant or any party that results from a merger other person or consolidation entity.
25.2 Notwithstanding any provision in this Lease, Tenant may, without the consent of Tenant; Landlord, assign, transfer or sublet this Lease or all or any party that part of the Premises to any entity substantially owned or controlled by Tenant, is under common control or ownership with Tenant, or owns or controls, directly or indirectly, the stock and assets of Tenant or into which Tenant is merged, with which Tenant is consolidated, or which acquires all or substantially all of the assets of Tenant, provided that (i) 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, and (ii) Tenant, as assignor or stock transferor, shall remain liable for performance of Tenant all obligations under the Lease (an “Allowable Permitted Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 25.3 In the event Tenant desires to effect assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee or subtenant other than a Permitted Transfer, then, then at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , and any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within twenty (20) days of the Landlord’s receipt of the Assignment Notice (with the required information), Landlord shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in have approved the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesrequest.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. 25.5 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, Tenant 25.6 Any sublease of the Premises shall remain fully be subject and primarily liable for the payment of all Rent and other sums due or subordinate to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets Lease, shall not extend beyond the Premises or any potion thereofterm of this Lease, Tenant hereby immediately and irrevocably assigns shall provide that the sublessee shall attorn to Landlord, as security for Tenantat Landlord’s obligations under sole option, in the event of the termination of this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Sources: Lease (Ligand Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer or encumber this Lease, nor sublet all or sublet any part of the Premises or any part hereof (each, a “Transfer”), permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consentapproval, which consent Landlord may agrees not unreasonably to withhold; provided. It will not be unreasonable for Landlord to withhold consent if the reputation, howeverfinancial responsibility, or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business not to be consonant with that Tenant shall have of other tenants in the right to assign all Building, or if the intended use by the proposed assignee or subtenant conflicts with any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect commitment made by Landlord to any other Transfertenant in the Building. Tenant’s request for approval shall be in writing and contain the name, but not more than ninety (90) days in any eventaddress, prior to and description of the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character business of the proposed transferee, assignee or sublessee; subtenant, its most recent financial statement and other evidence of financial responsibility, its intended use of the Assignment Date; any ownership or commercial relationship between Tenant Premises, and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in assignment or subletting. Within thirty (30) days from receipt of such detail as request Landlord shall reasonably require. either: (a) grant or refuse consent; or (b) elect to require Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing (i) 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 (ii) if the request is for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transferassignment of this Lease, may give consideration to terminate this Lease and the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use term hereof effective as of the Premiseslast day of the third month following the month in which the request was received. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, Each assignee or sublessee of poor reputationTenant’s interest hereunder shall assume and be deemed to have assumed this Lease and shall be liable jointly and severally with Tenant for all payments and for the due performance of all terms, lacking financial qualificationscovenants, seeking a change in conditions and provisions herein contained on Tenant’s part to be observed and performed for the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4Premises assigned or sublet. As conditions precedent No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute the same shall not release assignee from its liability as set forth herein. Tenant shall pay to Landlord’s consent to a Subject Transfer, Landlord may require any as Additional Rent hereunder, one hundred percent (100%) of all subrents or all of the following:
other sums or economic consideration received by Tenant (a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding after deducting Tenant’s reasonable costs in marketing and subleasing the Premises) of re-letting), whether denominated as rentals or otherwise, in excess of the rental and other charges due monthly sums which Tenant is required to Landlord pay under this Lease, Tenant . Any consent by Landlord hereunder shall pay twenty-five percent (25%) not constitute a waiver of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt strict future compliance by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to or a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of terms, covenants, provisions, or conditions in this Lease or a consent to any Transfercontained.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
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Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily LESSEE may not assign this Lease or by operation of Applicable Laws, directly sublease the Leased Premises in whole or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any in part hereof (each, a “Transfer”), without LandlordLESSOR’s prior express written consent, consent (which consent Landlord may shall not be unreasonably withhold; providedwithheld if the prospective assignee or sublessee is financially comparable to LESSEE by commercially reasonable standards, howeverand then only in accordance with and subject to the following conditions, that Tenant the satisfaction of which shall have be in the right reasonable discretion of LESSOR:
A. If LESSEE desires to assign all or any portion of its interest under this Lease or sublet the Leased Premises in whole, then, at least sixty (60) days prior to the proposed effective date of any assignment or sublease, the LESSEE shall deliver to LESSOR a written notice of intention to assign or to sublease, setting forth a proposed commencement date for the assignment or sublease and shall attach to such notice a copy of the proposed assignment or sublease agreement and all agreements collateral thereto. The LESSOR shall then have the right, to be exercised by giving written notice to LESSEE within thirty (30) business days after receipt of LESSEE’s notice of intention to assign or sublease, to cancel and terminate this Lease, as of the day before the proposed effective date of the assignment or sublease.
B. In the event of the assignment of this Lease or sublease of all or any portion of the Leased Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of where the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make rental reserved in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any exceeds the rental or the pro-rata portion of the Premisesrental, as the case may be, for such space reserved in this Lease, LESSEE shall pay the LESSOR monthly, as additional rent, at the same time and at the same place as the monthly installments of rent hereunder, the excess of the rental reserved in the assignment or sublease over the rental reserved in this Lease applicable to the assigned or subleased space after deducting LESSEE’S expenses, including brokerage commissions, legal fees, improvement costs, and rent concessions and advertising costs.
25.4. As conditions precedent C. None of LESSEE’s obligations to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest LESSOR under this Lease shall not be diminished waived, forfeited, compromised, released or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant novated regardless of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease assignment or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leasesublease, and any such proposed transferee, assignee assignment or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer sublease shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change expressly subject to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 Lease. Further, the terms and conditions of this Lease shall be voidtake precedence over and control the provisions of any sublease or assignment to the extent of conflict or differing interpretation.
25.6. The consent by Landlord D. Notwithstanding anything contained herein to a Transfer shall not relieve Tenant the contrary, LESSEE may, upon written notice to LESSOR, but without obtaining LESSOR’s consent, assign this Lease or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant sublease all or any proposed transfereepart of the Leased Premises (“Permitted Transfers”) to (a) a wholly-owned subsidiary of LESSEE, assignee (b) the parent of LESSEE, (c) any entity into or sublessee with which LESSEE may be reorganized, merged or consolidated, (d) an affiliate of Tenant from full and primary liability LESSEE (for purposes hereof an affiliate shall mean any business entity controlling, controlled by or under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereundercommon control with LESSEE), or the acceptance of performance of any other term, covenant or condition thereof, from (e) any person or entity other than Tenant shall not be deemed a waiver of any which acquires all of the provisions assets of this LESSEE as a going concern of the business that is being conducted on the Leased Premises, provided that such transferee assumes in full the obligations of LESSEE under the Lease or a consent to any Transfer(“Permitted Transferee”).
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
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