ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 Except as expressly permitted herein, Tenant, without the prior consent of Landlord in each instance, shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), mortgage or encumber its interest in this Lease, in whole or in part, (b) sublet, or permit the subletting of, the Premises or any part thereof, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant may, without the prior consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipment, or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premises. Section 12.2 If Tenant's interest in this Lease is assigned in violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Section 12.3 As long as Net2000 Communications Real Estate, Inc. or a Related Entity is Tenant hereunder, Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant (A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that: (1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate"); (2) no Event of Default shall then exist; (3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building, (4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building; (5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises; (6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance; (7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date; (8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and (9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any (B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space. (1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby. (A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant. (B) For purposes of this Lease:
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 14.1 Except as expressly permitted hereinotherwise provided in this Article 14, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant's interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, . Tenant shall not advertise or (c) permit the Premises authorize a broker to advertise for a subtenant or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayassignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereofLandlord, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers which shall not be granted access to operate such equipment, unreasonably withheld or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premisesdelayed.
Section 12.2 14.2 If Tenant's interest in this Lease is shall be assigned in violation of the provisions of this Article 1214, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long than Tenant, whether or not in violation of this Article 14, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as Net2000 Communications Real Estatea fee for its use and occupancy, Inc. or a Related Entity is Tenant hereunder, Tenant and shall have apply the privilege subject net amount collected to the terms Fixed Rent and conditions hereinafter set forth, without the consent items of Landlord, to assign its interest Rental reserved in this Lease (i) to any corporation which is a successor to Net2000 Communications Real EstateLease. No such assignment, Inc. either by merger or consolidationsubletting, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities)occupancy, or (iii) to a corporation use, whether with or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised nor any such collection or application of Rental or fee for subletting at use and occupancy, shall be deemed a rental rate less than the prevailing rental rate set waiver by Landlord for comparable space of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the Building (the "Prevailing Rate");
(2) no Event express prior consent of Default Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's consent shall then exist;
(3) the proposed subtenant shall be deemed without more to have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects assumed all of the other tenancies in obligations arising under this Lease from and after the Building,date of such
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant any subsequent amendment hereof, or for use in accordance with the standards of use of other tenancies in the Building; (b) materially Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all the liability under this Section 14.2 of the right, title and interest of Tenant, as sublessor under assigning Tenant shall continue to be no greater than if such sublease, and amendment had not been made (unless such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord party shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not have expressly provided consented in such sublease, which therefore accrued writing to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"amendment). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(Ba) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease:, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 (a) Except as expressly permitted herein, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (ai) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), mortgage or encumber its interest in this Lease, in whole or in part, (bii) sublet, or permit the subletting of, the Premises or any part thereof, or (ciii) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, by any person Person other than Tenant. As part of.
(b) If this Lease is assigned to any Person pursuant to the provisions of the Bankruptcy Code, any and directly related toall monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the conduct of Tenant's business Tenant may, without the prior consent exclusive property of Landlord and specifically exempt from shall not constitute property of Tenant or of the terms estate of Section 12.2 Tenant within the meaning of the Bankruptcy Code. Any and Section 12.5 hereof, place telecommunications equipment of its customers all monies or other consideration constituting Landlord’s property under the preceding sentence not paid or delivered to Landlord shall be held in the Premises trust for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers Landlord and shall not be granted access promptly paid to operate such equipment, or the right turned over to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 (a) If Tenant's ’s interest in this Lease is assigned in violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other thanthan Tenant, whether or not in violation of this Article 12, Landlord, after default by Tenant under this Lease, including a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. No such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as tenant hereunder. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use.
Section 12.3 As long as Net2000 Communications Real Estate, Inc. or a Related Entity is Tenant hereunder, (b) Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent reimburse Landlord on demand for any reasonable out-of-pocket third party costs that may be incurred by Landlord in connection with any proposed assignment of Landlord, to assign its Tenant’s interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any proposed subletting of the Premises (if Tenant proposes to sublet a portion or any part thereof, including any reasonable processing fee, reasonable attorneys’ fees and disbursements and the reasonable costs of the Premises then, unless the context otherwise requires, references in this Section 12.4 making investigations as to the Premises shall be deemed to refer to the portion acceptability of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed assignee.
(c) Neither any assignment of Tenant’s interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property Person other than the Premises; or (d) violate Tenant, nor any provision or restrictions herein relating to the use or occupancy collection of the Premises;
(6) the subletting shall be expressly subject to all Rental by Landlord from any Person other than Tenant as provided in this Section 12.2, nor any application of the termsany such Rental as provided in this Section 12.2 shall, covenantsin any circumstances, conditions and relieve Tenant of its obligations under this Lease on Tenant's ’s part to be observed and performed performed.
(d) Any Person to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such terminationassignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, re-entry subsequent to any assignment, Tenant’s liability hereunder shall continue notwithstanding any subsequent modification or dispossess by Landlord under amendment hereof or the release of any subsequent tenant hereunder from any liability, to all of which Tenant hereby consents in advance.
(a) If Tenant assumes this Lease and which Landlord is required proposes to perform hereunder with respect assign the same pursuant to the subleased space at Landlord's expenseprovisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Lease on terms acceptable to Tenant, it being expressly understoodthen notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, however, that Landlord shall not be bound by any
(B) At least but in any event no later than ten (10) Business Days days prior to any proposed subletting the date that Tenant shall submit make application to a statement court of competent jurisdiction for authority and approval to Landlord enter into such assignment and assumption. Such notice shall set forth (a "Sublease Statement") containing the following information: (ai) the name and address of the proposed subtenantsuch Person, (bii) a description all of the portion of the Premises to be sublet, (c) the terms and conditions of such offer, and (iii) adequate assurance of future performance by such Person under the proposed subletting Lease as set forth in Section 12.3(b), including the rent payable, (dassurance referred to in Section 365(b)(3) the nature and character of the business Bankruptcy Code or Requirements of the proposed subtenant and (e) any other information that Landlord may reasonably requestsimilar purpose or import. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statementprior right and option, to terminate this Lease with respect be exercised by notice to Tenant given at any time prior to the portion effective date of the Premises such proposed assignment, to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions that would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with respect to the Offered Spaceassignment of this Lease.
(1b) The failure term “adequate assurance of future performance” as used in this Lease shall mean that any proposed assignee shall, among other things, (i) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of this Lease, which sum shall be held by Landlord to exercise its option under Section 12.4(Bin accordance with the provisions of Article 31, (ii) furnish Landlord with respect to any subletting shall not be deemed a waiver financial statements of such option with respect to any extension assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such subletting or any subsequent subletting of the Premises affected thereby.
three (A3) In connection with any subletting of all or any portion of the Premisesyears, Landlord shall be entitled to and Tenant shall pay (iii) grant to Landlord a sum equal security interest in such property of the proposed assignee as Landlord shall deem necessary to fifty percent secure such assignee’s future performance under this Lease, and (50%iv) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to provide such other information or take such action as Landlord, as additional rent, within ten (10) days after receipt thereof in its reasonable judgment shall determine is necessary to provide adequate assurance of the performance by Tenantsuch assignee of its obligations under the Lease.
(B) For purposes of this Lease:
Appears in 1 contract
Sources: Lease Agreement (Travelzoo Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 (A) Except as expressly permitted herein, Tenant, without the prior consent of Landlord in each instance, shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), mortgage or encumber its interest in this Lease, in whole or in part, (b) sublet, or permit the subletting of, the Premises or any part thereof, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, by any person Person other than Tenant. As part of.
(B) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and directly related toall monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the conduct of Tenant's business Tenant may, without the prior consent exclusive property of Landlord and specifically exempt from shall not constitute property of Tenant or of the terms estate of Section 12.2 Tenant within the meaning of the Bankruptcy Code. Any and Section 12.5 hereof, place telecommunications equipment of its customers all monies or other consideration constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in the Premises trust for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers Landlord and shall not be granted access promptly paid to operate such equipment, or the right turned over to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 (A) If Tenant's interest in this Lease is assigned in violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other thanthan Tenant, whether or not in violation of this Article 12, Landlord, after default by Tenant under this Lease, including, without limitation, a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. No such assignment, subletting, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as tenant hereunder. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord within fifteen (15) Business Days after demand thereof for any actual out-of-pocket costs that may be incurred by Landlord in connection with any proposed assignment of Tenant's interest in this Lease or any proposed subletting of the Premises or any part thereof, including, without limitation, any reasonable processing fee, reasonable attorneys' fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed.
(D) Any Person to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant's liability hereunder shall continue to the extent of the obligations contained in this Lease (as the same may have been amended or modified prior to any such assignment), notwithstanding any subsequent modification or amendment hereof or the release of any subsequent tenant hereunder from any liability, to which release Tenant hereby consents in advance.
(A) If Tenant assumes this Lease and proposes to assign the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Lease on terms acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. Such notice shall set forth (a) the name and address of such Person, (b) all of the terms and conditions of such offer, and (c) adequate assurance of future performance by such Person under the Lease as set forth in Paragraph (B) below, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any time prior to the effective date of such proposed assignment, to accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions which would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in this Lease shall mean that any proposed assignee shall, among other things, (a) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of this Lease, which sum shall be held by Landlord in accordance with the provisions of Article 31 hereof, (b) furnish Landlord with financial statements of such assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such three (3) years, (c) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee's future performance under this Lease, and (d) provide such other information or take such action as Landlord, in its reasonable judgment shall determine is necessary to provide adequate assurance of the performance by such assignee of its obligations under the Lease.
Section 12.3 12.4. (A) As long as Net2000 Focal Communications Real Estate, Inc. or a Related Entity Corp. is Tenant hereunderTenant, Tenant shall have the privilege privilege, subject to the terms and conditions hereinafter set forth, without the consent of LandlordLandlord but subject to Tenant's satisfaction of conditions set forth in clauses (1), (4) and (5) of Section 12.8(A) hereof, and without Landlord having the right granted in Section 12.8(B) hereof to recapture, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. Tenant either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.Tenant's assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), ) or (iii) to a corporation or other entity Person which shall (1) controlControl, (2) be under the control Control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Control with Tenant is not a corporation) (any such entity Person referred to in this clause (iii) being a "Related Entity"). As long as Focal Communications Corp. is Tenant, Tenant may also shall have the privilege, subject to the terms and conditions hereinafter set forth, without the consent of Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the right granted in Section 12.6(B) hereof to recapture, to sublease all or any portion of the Premises to a Related Entity without the consent of LandlordEntity. Any assignment or subletting described above may only be made upon the condition that (a) any such assignee or subtenant shall continue to use the Premises for the conduct of the same business as Tenant was conducting prior to such assignment or sublease, (b) the principal purpose of such assignment or sublease is not the acquisition of Tenant
(A) Notwithstanding 's interest in this Lease or to circumvent the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Article (except if such assignment or sublease is made to a Related Entity and is made for a valid intracorporate business purpose and is not made to circumvent the provisions of Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting 12.1 of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by TenantArticle), provided that:
and (1c) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event case of Default shall then exist;
(3) the proposed subtenant an assignment other than to a Related Entity, any such assignee shall have a financial standingnet worth and annual income and cash flow, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use determined in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior generally accepted accounting principles, consistently applied, after giving effect to such proposed subletting; assignment, equal to the greater of Tenant's net worth and annual income and cash flow, as so determined, on (ci) require any alterations the date immediately preceding the date of such assignment, and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days after execution thereof, deliver to Landlord either (x) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Landlord, duly executed by Tenant, together with an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to personally bound by, all of the terms, covenants, covenants and conditions and obligations of this Lease on Tenant's part to be observed and performed under this Lease from and after the further condition and restriction that effective date of the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in partassignment, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (by) a description of the portion of the Premises to be sublet, (c) the terms duplicate original sublease in form and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may substance reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid satisfactory to Landlord, as additional rent, within ten (10) days after receipt thereof duly executed by TenantTenant and the subtenant.
(B) For purposes of this Lease:
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 Except (a) Other than as expressly permitted hereinset forth in this Lease, Tenant, without the prior consent of Landlord in each instancefor itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (ai) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise)assign, mortgage or encumber its this Agreement or Tenant’s interest in this Lease, in whole or in part, (b) sublet, or permit the subletting of, the Demised Premises or any part thereof, nor (ii) underlet or (c) suffer or permit the Demised Premises or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant may, without the prior consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipment, or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premises.
Section 12.2 If Tenant's interest in this Lease is assigned in violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long as Net2000 Communications Real Estate, Inc. or a Related Entity is Tenant hereunder, Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and . However, Landlord’s consent shall not be required and the provisions of Sections (e), (f) and (g) of this Article 11 shall not apply to an assignment or sublease to an entity which (a) owns a majority of the shares and/or other ownership interests of Tenant, (b) the majority of which is owned by Tenant, (c) is owned by the same persons or entities who own Tenant or (d) an assignment of this Lease to any entity into or with which Tenant is merged or consolidated or to an entity that purchases substantially all of Tenant’s assets or ownership interest so long as after such transaction referred to in this subparagraph (d), Tenant’s net worth is not less than the greater of (x) Tenant’s net worth as of the date of this Lease or (y) Tenant’s net worth immediately prior to such transaction. The consent by Landlord to an assignment or underletting shall not in any wise be construed to relieve Tenant from any of its obligations hereunder or from obtaining the express consent in writing of Landlord to any further assignment or underletting.
(b) Any transfer, by operation of law or otherwise, of fifty percent (50%) or more of the issued and outstanding shares of capital stock of Tenant (or if Tenant is a partnership or other entity fifty percent (50%) or more of the partnership interests or other ownership interests of Tenant), in a single transaction or a related series of transactions, shall he deemed an assignment of this Lease within the meaning of this Article 11, except for a term transferor related series of less than two (2) years unless it commences less than two (2) years before transfers by reason of bequest, devise or by operation of the Expiration Date;laws of intestacy on or as a result of the death of a shareholder or transfers of stock through any nationally recognized stock exchange.
(8) no subletting c) No assignment or transfer shall be for less than 2,200 contiguous rentable square feet effective unless and at no time until the assignee shall there be more than three (3) occupantsexecute, including Tenantacknowledge and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, whereby the Premises; and
assignee shall (9i) such sublease shall expressly provide that in assume the event obligations and performance of termination, re-entry or dispossess of Tenant this Lease and agree to be bound by Landlord under this Lease, Landlord may, at its option, take over all of the rightcovenants, title agreements, terms, provisions and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to conditions hereof on the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission part of Tenant under to be performed or observed on and after the effective date of any such sublease, assignment and (ii) agree that the provisions of this Article shall, notwithstanding such assignment or transfer, be subject to any offsetbinding upon it in the future.
(d) If this Lease be assigned, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of if the Premises or any portion part thereof demised be underlet or occupied by anyone other than Tenant, landlord may, after default by Tenant, collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such sublease and (v) assignment, underletting, occupancy or collection shall be bound by any obligation to make any payment to deemed a waiver of this covenant, or on behalf the acceptance of the subtenantassignee, except for servicesunder-tenant or occupant as tenant, repairs, maintenance and restoration provided for under or a release of Tenant from the sublease further performance by Tenant of covenants on the part of Tenant herein contained.
(i) If Tenant desires Landlord’s consent to be performed after the date an assignment of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required or to perform hereunder the subletting of all or any part of the Premises for any part of the term of this Lease with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting thereto. Tenant shall submit a statement to notify Landlord (a "Sublease Statement") containing the following information: (a) of the name and address of the proposed subtenantassignee/sublessee, (b) a description such information as to the proposed assignee/sublessee’s business financial responsibility and standing as Landlord may reasonably require, and of the portion of the Premises to be sublet, (c) the material business terms and conditions of the proposed subletting including the rent payableassignment/subletting. Such notice shall be deemed an offer to vacate and surrender, (d) the nature and character as of the business of the proposed subtenant and Special Surrender Date (eas hereinafter defined), either (1) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, if Tenant proposes to terminate this Lease with respect to the portion sublet only a part of the Premises for the balance of the term of this Lease, the space to be demised by the proposed sublease together with such other space, if any, as may be reasonably required for public corridors, toilets and core facilities serving the space so proposed to be sublet (the "Offered said space(s) being herein collectively called a “Partial Space"). If Landlord exercises its option ”) or (2) if Tenant proposes to terminate assign this Lease with respect or to sublet the Offered Spaceentire Premises, then the Fixed Rententire Premises. The term “Special Surrender Date” shall mean a date to be specified in such notice from Tenant; provided, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting however, that said date shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
earlier than forty-live (A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (1045) days after the giving of such notice and not later than the effective date of the assignment or the date for the commencement of the term of the proposed subletting Landlord may accept such offer by a notice given to Tenant within thirty (30) days after the receipt thereof by of such notice from Tenant.
(B) For purposes of this Lease:
Appears in 1 contract
Sources: Lease Agreement (Borderfree, Inc.)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 (A) Except as expressly permitted herein, Tenant, without the prior consent of Landlord in each instance, shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), mortgage or encumber its interest in this Lease, in whole or in part, (b) sublet, or permit the subletting of, the Premises or any part thereof, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, by any person Person other than Tenant. As part of.
(B) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and directly related toall monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the conduct of Tenant's business Tenant may, without the prior consent exclusive property of Landlord and specifically exempt from shall not constitute property of Tenant or of the terms estate of Section 12.2 Tenant within the meaning of the Bankruptcy Code. Any and Section 12.5 hereof, place telecommunications equipment of its customers all monies or other consideration constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in the Premises trust for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers Landlord and shall not be granted access promptly paid to operate such equipment, or the right turned over to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 (A) If Tenant's interest in this Lease is assigned in violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other thanthan Tenant, whether or not in violation of this Article 12, Landlord, after default by Tenant under this Lease, including, without limitation, a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. No such assignment, subletting, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as tenant hereunder. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any costs that may be reasonably incurred by Landlord in connection with any proposed assignment of Tenant's interest in this Lease or any proposed subletting of the Premises or any part thereof, including, without limitation, any reasonable processing fee, reasonable attorneys' fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.3 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed.
(D) Any Person to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant's liability hereunder shall continue notwithstanding any subsequent modification or amendment hereof or the release of any subsequent tenant hereunder from any liability, to all of which Tenant hereby consents in advance.
(A) If Tenant assumes this Lease and proposes to assign the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a BONA FIDE offer to accept an assignment of this Lease on terms acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. Such notice shall set forth (a) the name and address of such Person, (b) all of the terms and conditions of such offer, and (c) adequate assurance of future performance by such Person under the Lease as set forth in Paragraph (B) below, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any time prior to the effective date of such proposed assignment, to accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the BONA FIDE offer made by such Person, less any brokerage commissions which would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in this Lease shall mean that any proposed assignee shall, among other things, (a) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of this Lease, which sum shall be held by Landlord in accordance with the provisions of Article 31 hereof, (b) furnish Landlord with financial statements of such assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such three (3) years, (c) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee's future performance under this Lease, and (d) provide such other information or take such action as Landlord, in its reasonable judgment shall determine is necessary to provide adequate assurance of the performance by such assignee of its obligations under the Lease.
(A) As long as Net2000 Communications Real Estate▇▇▇▇.▇▇▇, Inc. or a Related Entity is Tenant hereunderTenant, Tenant shall have the privilege privilege, subject to the terms and conditions hereinafter set forth, without the consent of LandlordLandlord but subject to Tenant's satisfaction of conditions set forth in clauses (1), (4) and (5) of Section 12.8(A) hereof, and without Landlord having the right granted in Section 12.8(B) hereof to recapture, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. Tenant either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.Tenant's assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), ) or (iii) to a corporation or other entity Person which shall (1) controlControl, (2) be under the control Control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Control with Tenant is not a corporation) (any such entity Person referred to in this clause (iii) being a "Related EntityRELATED ENTITY"). As long as ▇▇▇▇.▇▇▇, Inc. is Tenant, Tenant may also shall have the privilege, subject to the terms and conditions hereinafter set forth, without the consent of Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the right granted in Section 12.6(B) hereof to recapture, to sublease all or any portion of the Premises to a Related Entity without the consent of LandlordEntity. Any assignment or subletting described above may only be made upon the condition that (a) any such assignee or subtenant shall continue to use the Premises for general, administrative and executive offices, (b) the principal purpose of such assignment or sublease is not the acquisition of Tenant's interest in this Lease or to circumvent the provisions of Section 12.1 of this Article (except if such assignment or sublease is made to a Related Entity and is made for a valid intracorporate business purpose and is not made to circumvent the provisions of Section 12.1 of this Article), and (c) in the case of an assignment, any such assignee shall have a net worth and annual income and cash flow, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment, equal to the greater of Tenant's net worth and annual income and cash flow, as so determined, on (i) the date immediately preceding the date of such assignment, and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days after execution thereof, deliver to Landlord either (x) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Landlord, duly executed by Tenant, together with an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed, or (y) a duplicate original sublease in form and substance reasonably satisfactory to Landlord, duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new Partners, the withdrawal, retirement, death, incompetency or bankruptcy of any Partner, or the reallocation of partnership interests among the Partners shall not constitute an assignment of this Lease, provided the principal purpose of any of the foregoing is not to circumvent the restrictions on assignment set forth in the provisions of this Article 12. The reorganization of Tenant from a professional corporation into a partnership or the reorganization of a Tenant from a partnership into a professional corporation, shall not constitute an assignment of this Lease, provided that immediately following such reorganization the Partners of Tenant shall be the same as the shareholders of Tenant existing immediately prior to such reorganization, or the shareholders of Tenant shall be the same as the Partners of Tenant existing immediately prior to such reorganization, as the case may be. If Tenant shall become a professional corporation, each individual shareholder in Tenant and each employee of a professional corporation which is a shareholder in Tenant shall have the same personal liability as such individual or employee would have under this Lease if Tenant were a partnership and such individual or employee were a Partner in Tenant. If any individual Partner in Tenant is or becomes an employee of a professional corporation, such individual shall have the same personal liability under this Lease as such individual would have if he and not the professional corporation were a Partner of Tenant.
(C) Except as set forth above, either a transfer (including the issuance of treasury stock or the creation and issuance of new stock or a new class of stock) of a more than fifty percent (50%) interest in the shares of Tenant (if Tenant is a corporation or trust) or a transfer of a majority of the total interest in Tenant (if Tenant is a partnership or other entity) at any one time or over a period of time through a series of transfers, shall be deemed an assignment of this Lease and shall be subject to all of the provisions of this Article 12, including, without limitation, the requirement that Tenant obtain Landlord's prior consent thereto. The transfer of shares of Tenant (if Tenant is a corporation or trust) for purposes of this Section 12.4 shall not include the sale of shares by persons other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, which sale is effected through the "over-the-counter market" or through any recognized stock exchange.
SECTION 12.5. If, at any time after the originally named Tenant herein may have assigned Tenant's interest in this Lease, this Lease shall be disaffirmed or rejected in any proceeding of the types described in paragraph (E) of Section 16.1 hereof, or in any similar proceeding, or in the event of termination of this Lease by reason of any such proceeding or by reason of lapse of time following notice of termination given pursuant to said Article 16 based upon any of the Events of Default set forth in such paragraph, any prior Tenant, including, without limitation, the originally named Tenant, upon request of Landlord given within thirty (30) days next following any such disaffirmance, rejection or termination (and actual notice thereof to Landlord in the event of a disaffirmance or rejection or in the event of termination other than by act of Landlord), shall (1) pay to Landlord all Fixed Rent, Escalation Rent and other items of Rental due and owing by the assignee to Landlord under this Lease to and including the date of such disaffirmance, rejection or termination, and (2) as "tenant", enter into a new lease with Landlord of the Premises for a term commencing on the effective date of such disaffirmance, rejection or termination and ending on the Expiration Date, unless sooner terminated as in such lease provided, at the same Fixed Rent and upon the then executory terms, covenants and conditions as are contained in this Lease, except that (a) Tenant's rights under the new lease shall be subject to the possessory rights of the assignee under this Lease and the possessory rights of any person claiming through or under such assignee or by virtue of any statute or of any order of any court, (b) such new lease shall require all defaults existing under this Lease to be cured by Tenant with due diligence, and (c) such new lease shall require Tenant to pay all Escalation Rent reserved in this Lease which, had this Lease not been so disaffirmed, rejected or terminated, would have accrued under the provisions of Article 27 hereof after the date of such disaffirmance, rejection or termination with respect to any period prior thereto. If any such prior Tenant shall default in its obligation to enter into said new lease for a period of ten (10) days next following Landlord's request therefor, then, in addition to all other rights and remedies by reason of such default, either at law or in equity, Landlord shall have the same rights and remedies against such Tenant as if such Tenant had entered into such new lease and such new lease had thereafter been terminated as of the commencement date thereof by reason of such Tenant's default thereunder.
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.412.6, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant)Premises, provided that:
(1) the The Premises shall not not, without Landlord's prior consent, have been listed or otherwise publicly advertised for subletting at a rental rate less than the greater of (i) the sum of the Fixed Rent, Electricity Additional Rent, and Escalation Rent then payable hereunder, and (ii) the prevailing rental rate set by Landlord for comparable space in the Building or if there is no comparable space, the prevailing rental rate reasonably determined by Landlord (the "PREVAILING RATE"), nor shall Tenant advise any broker, agent, finder or prospective subtenant that Tenant intends to sublet the Premises at a rate less than the Prevailing Rate");
(2) Intentionally Omitted Prior to Execution;
(3) no Event of Default shall then existhave occurred and be continuing;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in upon the Building comparable to date Tenant delivers the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn Statement to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:upon
Appears in 1 contract
Sources: Lease Agreement (NBC Internet Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 15.1 Except as expressly permitted hereinotherwise provided in this Article 15, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayshall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from to the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit form of such customersadvertisement, of telecommunications services; provided, however, that such customers which consent shall not be granted access to operate such equipmentunreasonably withheld, conditioned or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premisesdelayed.
Section 12.2 15.2 If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 1215, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long than Tenant, whether or not in violation of this Article 15, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as Net2000 Communications Real Estatea fee for its use and occupancy, Inc. and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a Related Entity is waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any Person to which this Lease is assigned with Landlord’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such assignment and shall execute and deliver to Landlord, upon demand, an instrument in commercially reasonable form confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have the privilege subject expressly consented in writing to the terms and conditions hereinafter set forthsuch amendment).
(A) For purposes of this Article 15, without the consent of Landlord, to assign its interest in this Lease (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interests in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or parent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter market” or through any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidationrecognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant, subtenant or parent so that the shareholders or members of such tenant, subtenant or parent existing immediately prior to such transaction or series of transactions shall no longer own a purchaser majority of all the issued and outstanding capital stock or membership interests of such entity, shall be deemed an assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15 and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 15.
(B) The provisions of clauses (a), (c) and (d) of Section 15.1 and Section 15.4 shall not apply to (and Landlord’s consent shall not be required for) (i) a change in ownership of Tenant as a result of a merger, consolidation or reorganization or the sale of substantially all of Net2000 Communications Real Estate, Inc.'s Tenant’s assets (provided such purchaser shall have also assumed substantially all merger, consolidation, reorganization or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of ninety-five (95%) percent of the net worth of Tenant as of the date of this Lease; (ii) the sale, exchange, issuance or other transfer of Tenant's liabilities), ’s stock on a national stock exchange; or (iii) to a corporation the assignment of this Lease or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership sublease of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereofto, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by, an entity which controls, is controlled by or is under the proposed subtenant common control of Tenant. Tenant shall not (a) be likely notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory requirements applicable to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the which event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement notify Landlord promptly after Tenant is permitted to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Spacedo so.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 15.1. Except as expressly permitted hereinotherwise provided in this Article 15, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayshall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereofto such advertisement, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers which shall not be granted access to operate such equipmentunreasonably withheld or delayed, or provided that Tenant shall have the right to occupyretain a broker to list for a subtenant or assignee. In no event may Tenant publicize any financial information (including, the Premises in connection therewith. At the request of Landlord made from time to timewithout limitation, Tenant shall promptly furnish Landlord with a list of rental amounts) or otherwise advertise any such customers and identify the equipment of such customers located in the Premisesinformation or amount.
Section 12.2 15.2. If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 1215, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long than Tenant, whether or not in violation of this Article 15, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as Net2000 Communications Real Estatea fee for its use and occupancy, Inc. and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a Related Entity is waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have the privilege subject expressly consented in writing to the terms and conditions hereinafter set forthsuch amendment).
(A) For purposes of this Article 15, without the consent of Landlord, to assign its interest in this Lease (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interests in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or parent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter market” or through any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidationrecognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactions involving the tenant, subtenant and/or its parent, resulting in a change in the control of such tenant, subtenant or parent so that the shareholders or members of such tenant, subtenant or parent existing immediately prior to such transaction or series of transactions shall no longer control such entity, shall be deemed an assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15, (v) a modification, amendment or extension of a sublease shall be deemed a sublease, and (vi) the change or conversion of Tenant from an entity in which the partners or members have personal liability to a purchaser limited liability company, a limited liability partnership or any other entity which possesses the characteristics of limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 15.
(B) The provisions of clauses (a), (c) and (d) of Section 15.1, Section 15.3(A), Section 15.4(B), Section 15.5 and Section 15.6 shall not apply to (and Landlord’s consent shall not be required for)
(i) a change in ownership or control of Tenant as a result of a merger, consolidation or reorganization, or the sale of all or substantially all of Net2000 Communications Real Estate, Inc.'s Tenant’s assets (provided that such purchaser shall have also assumed substantially all merger, consolidation, reorganization or transfer of assets is for a valid business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that upon such change in ownership or control Tenant has a net worth in an amount at least equal to or in excess of twenty-five (25) times the then annual Fixed Rent under this Lease); (ii) the sale, exchange, issuance or other transfer of Tenant's liabilities), ’s stock on a national stock exchange; or (iii) to a corporation the assignment of this Lease or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership sublease of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereofto, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by, an entity which controls, is controlled by or is under the proposed subtenant common control of Tenant (such transactions described in clauses (i) and (iii) being collectively referred to as “Permitted Transfers”, and such parties “Permitted Transferees”). Tenant shall not (a) be likely notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory requirements applicable to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the which event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement notify Landlord promptly after Tenant is permitted to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Spacedo so.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 Except as expressly permitted hereinotherwise provided in this Article 12, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, direct or indirect transfers of interests in Tenant or otherwise, howsoever accomplished), ; or (b) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part ofTenant shall not, and directly related toin any advertisement for a subtenant or assignee, quote a rental rate lower than the conduct of Tenant's business rental rate then being paid by Tenant mayto Landlord, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipment, or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 12, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the such assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any Person other than Tenant, whether or not in violation of this Article 12, Landlord, after default by Tenant beyond all applicable notice and grace periods under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use, which consent shall be given or withheld in accordance with the provisions of this Lease as if Tenant were making the request. Any person other thanto which this Lease is assigned with Landlord’s consent shall be deemed, without more to have assumed all of the obligations arising under this Lease from and after the date of such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to all of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 12.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
Section 12.3 As long as Net2000 Communications Real Estate(A) For purposes of this Article 12, Inc. (i) the sale or transfer of stock of the Tenant named in this lease shall not be deemed an assignment of this Lease provided such transfer is in furtherance of a good business purpose, provided however, that, other than with respect to the Tenant named in this Lease or a Related Entity successor entity, the sale or transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interests in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter market” or through any recognized stock exchange, (ii) other than with respect to the stock of the Tenant named in this Lease provided such increase or issuance of stock or interests is in furtherance of a good business purpose, any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders or members of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such tenant or subtenant, shall be deemed an assignment of this Lease, (iii) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 12, and (iv) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant hereunderagrees to furnish to Landlord within ten (10) Business Days after a request is made by Landlord, such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 12.
(1) The provisions of clauses (a), (c) and (d) of Section 12.1 shall not apply to transactions with a corporation or limited liability company into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant’s assets are transferred (provided such merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date immediately prior to such merger, consolidation or transfer), or, if Tenant is a general, limited or limited liability partnership, with a successor partnership, nor shall the provisions of clauses (a), (c) and (d) of Section 12.1 apply to transactions with an Affiliate of Tenant. Tenant shall have the privilege subject right to the terms and conditions hereinafter set forth, enter into such transactions without the Landlord’s prior consent but upon prior notice to Landlord. An Affiliate of Landlord, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser Tenant shall have also assumed substantially all of Tenant's liabilities), or (iii) the right to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease use all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's ’s consent but with prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior notice to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:
Appears in 1 contract
Sources: Lease Agreement (Coty Inc /)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 Except as expressly permitted herein15.1 Tenant shall not, Tenantwhether voluntarily, without the prior consent involuntarily, or by operation of Landlord in each instance, shall not law or otherwise (a) assign its rights or delegate its duties under otherwise transfer this Lease (whether by operation other than to an Affiliate of lawTenant, transfers of interests in Tenant or otherwise), mortgage offer or encumber its interest in this Lease, in whole or in partadvertise to do so, (b) sublet, or permit the subletting of, sublet the Premises or any part thereof, or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, or (c) permit mortgage, pledge, encumber or otherwise hypothecate this Lease or the Premises or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by in any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant maymanner whatsoever, without in each instance obtaining the prior consent of Landlord Landlord.
Section 15.2 If and specifically exempt from so long as Tenant is a corporation or a partnership, the terms following shall be deemed to be an assignment of this Lease under Section 12.2 and 15.1 prohibited by said Section 12.5 hereofunless Tenant obtains the prior consent of Landlord: one or more sales or transfers of stock or Back to Contents partnership interests, place telecommunications equipment voluntarily, involuntarily, by operation of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipmentlaw or otherwise, or the right issuance of new stock or partnership interests, by which an aggregate of more than 50% of Tenant’s stock or partnership interests shall be vested in a party or parties who are not stockholders or partners as of the date hereof. This Section shall not apply to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord transactions with a list corporation, limited liability company or partnership into or with which Tenant is merged or consolidated or to which substantially all of Tenant’s assets are transferred or to any corporation, limited liability company or partnership (an “Affiliate”) which controls Tenant or is controlled by Tenant or is under common control with Tenant if (a) the successor to Tenant has a tangible net worth computed in accordance with generally accepted accounting principles at least equal to the greater of (i) the tangible net worth of Tenant immediately prior to such merger, consolidation or transfer, or (ii) the tangible net worth on the date of this Lease of the original Tenant herein named, and (b) proof satisfactory to Landlord of such customers and identify tangible net worth is delivered to Landlord at least 10 days prior to the equipment effective date of any such transaction. The provisions of this Section shall not apply to any corporation all the outstanding voting stock of which 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 through its automated system for reporting quotations. The term “control” as used in this Lease (i) in the case of a corporation shall mean ownership of more than fifty (50%) percent of the outstanding voting common capital stock of that corporation, (ii) in the case of a general or limited liability partnership, shall mean more than fifty (50%) percent of the general partnership or membership interest of the partnership, (iii) in the case of a limited partnership, shall mean more than fifty (50%) percent of the general partnership interests of such customers located limited partnership, and (iv) in the Premisescase of a limited liability company, shall mean more than fifty (50%) percent of the membership interests of such limited liability company.
Section 12.2 15.3 If Tenant's interest in this Lease is assigned assigned, whether or not in violation of the provisions of this Article 12Lease, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental rent from the assignee as a fee for its use and occupancyassignee. If the Premises or any part thereof are sublet toor used or occupied by anybody other than Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the Fixed Rent and Additional Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 15.1, or occupied bythe acceptance of the assignee, subtenant or occupant as tenant, or used bya release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease. The consent by Landlord to assignment, mortgaging, subletting or use or occupancy by others shall not in any person way be considered to relieve Tenant from obtaining the consent of Landlord to any other thanor further assignment, mortgaging, subletting or use or occupancy by others not expressly permitted by this Article. References in this Lease to use or occupancy by others (that is, anyone other than Tenant) shall not be construed as limited to subtenants and those claiming under or through subtenants but as including also licensees and others claiming under or through Tenant, immediately or remotely.
Section 12.3 As long 15.4 Any assignment or transfer, whether made with Landlord’s consent pursuant to Section 15.1 or without the requirement of Landlord’s consent pursuant to Section 15.2, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance reasonably Back to Contents satisfactory to Landlord whereby the assignee shall assume the obligations of this Lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions in Section 15.1 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. Notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of the Fixed Rent or Additional Rent by Landlord from an assignee, transferee, or any other party, the original named Tenant shall remain fully liable for the payment of the Fixed Rent and Additional Rent and for the other obligations of this Lease on the part of Tenant to be performed or observed.
Section 15.5 The liability of Tenant and any immediate or remote successor in interest of Tenant and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord with the then Tenant extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
Section 15.6 Neither the listing of any name other than that of Tenant, whether on the door of the Premises or on any directory, or otherwise, nor the acceptance by Landlord of any check not drawn by Tenant in payment of Fixed Rent or Additional Charges, shall operate to vest any right or interest in this Lease or in the Premises, nor shall it be deemed to be the consent of Landlord to any assignment or transfer of this Lease or to any sublease of the Premises or to the use or occupancy thereof by others.
Section 15.7 Except as Net2000 Communications Real Estatespecifically provided to the contrary in this Article 15, Inc. if Tenant shall at any time or a Related Entity is Tenant hereundertimes during the Term desire to assign this Lease or sublet all or any part of the Premises, Tenant shall have give notice thereof to Landlord, which notice shall be accompanied by (a) a conformed or photostatic copy of the privilege subject 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, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (i) sublease such space from Tenant upon the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest in forth or (ii) terminate this Lease (i) to any corporation which if the proposed transaction is an assignment or a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser sublease of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"Premises). Said options may be exercised by Landlord by notice to Tenant may also sublease all or at any portion of the Premises time within 60 days after such notice has been given by Tenant to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord ; and during such 60-day period Tenant shall not exercise its rights pursuant to paragraph (B) of assign this Section 12.4, Landlord shall not unreasonably withhold its consent Lease or sublet such space to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this person.
Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). 15.8 If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion case where Tenant desires either to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of assign this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of sublet all or any portion substantially all of the Premises, Landlord then this Lease shall end and expire on the date that such assignment or sublet was to be entitled to effective or commence, as the case may be, and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but the Fixed Rent and Additional Rent shall be paid and apportioned to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenantsuch date.
(B) For purposes of this Lease:
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 (A) Except as expressly permitted herein, Tenant, without ------------- the prior consent of Landlord in each instance, shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), mortgage or encumber its interest in this Lease, in whole or in part, (b) sublet, or permit the subletting of, the Premises or any part thereof, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, by any person Person other than Tenant. As part of.
(B) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and directly related toall monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the conduct of Tenant's business Tenant may, without the prior consent exclusive property of Landlord and specifically exempt from shall not constitute property of Tenant or of the terms estate of Section 12.2 Tenant within the meaning of the Bankruptcy Code. Any and Section 12.5 hereof, place telecommunications equipment of its customers all monies or other consideration constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in the Premises trust for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers Landlord and shall not be granted access promptly paid to operate such equipment, or the right turned over to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 (A) If Tenant's interest in this Lease is assigned in ------------- violation of the provisions of this Article 12, such assignment shall be void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other thanthan Tenant, whether or not in violation of this Article 12, Landlord, after default by Tenant under this Lease, including, without limitation, a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. No such assignment, subletting, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as tenant hereunder. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any actual third party out-of-pocket costs that may be incurred by Landlord in connection with any proposed assignment of Tenant's interest in this Lease or any proposed subletting of the Premises or any part thereof, including, without limitation, any reasonable processing fee, reasonable attorneys' fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.3 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed.
(D) Any Person to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant's liability hereunder shall continue notwithstanding any subsequent modification or amendment hereof or the release of any subsequent tenant hereunder from any liability, to all of which Tenant hereby consents in advance .
(A) If Tenant assumes this Lease and proposes to assign ------------- the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Lease on terms --------- acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. Such notice shall set forth (a) the name and address of such Person, (b) all of the terms and conditions of such offer, and (c) adequate assurance of future performance by such Person under the Lease as set forth in Paragraph (B) below, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any time prior to the effective date of such proposed assignment, to accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any --------- brokerage commissions which would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in this Lease shall mean that any proposed assignee shall, among other things, (a) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of this Lease, which sum shall be held by Landlord in accordance with the provisions of Article 31 hereof, (b) furnish Landlord with financial statements of such assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such three (3) years, (c) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee's future performance under this Lease, and (d) provide such other information or take such action as Landlord, in its reasonable judgment shall determine is necessary to provide adequate assurance of the performance by such assignee of its obligations under the Lease.
(A) As long as Net2000 Communications Real Estate, Inc. The Music Connection Corporation or a ------------- Related Entity of The Music Connection Corporation is Tenant hereunderTenant, Tenant shall have the privilege privilege, subject to the terms and conditions hereinafter set forth, without the consent of LandlordLandlord but subject to Tenant's satisfaction of conditions set forth in clauses (1), (4) and (5) of Section 12.8(A) hereof, and without Landlord having the right granted in Section 12.8(B) hereof to recapture, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. Tenant either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate(a) Tenant's assets, Inc.or (b) shares of Tenant's assets stock (if Tenant is a corporation or trust), or (c) the interests in Tenant (if Tenant is a partnership or other entity) (provided that in any case, such purchaser shall have also assumed substantially all of Tenant's liabilities), ) or (iii) to a corporation or other entity Person which shall (1) controlControl, (2) be under the control Control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Control with Tenant is not a corporation) (any such entity Person referred to in this clause (iii) being a "Related Entity"). As --------------- long as The Music Connection Corporation or a Related Entity of The Music Connection Corporation is Tenant, Tenant may also shall have the privilege, subject to the terms and conditions hereinafter set forth, without the consent of Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the right granted in Section 12.6(B) hereof to recapture, to sublease all or any portion of the Premises to a Related Entity without the consent of LandlordEntity. Any assignment or subletting described above may only be made upon the condition that (a) any such assignee or subtenant shall continue to use the Premises in accordance with all of the provisions of this Lease, (b) the principal purpose of such assignment or sublease is not the acquisition of Tenant's interest in this Lease or to circumvent the provisions of Section 12.1 of this Article (except if such assignment or sublease is made to a Related Entity and is made for a valid intracorporate business purpose and is not made to circumvent the provisions of Section 12.1 of this Article), and (c) in the case of an assignment, any such assignee shall have a net worth and annual income and cash flow, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment, equal to the greater of Tenant's net worth and annual income and cash flow, as so determined, on (i) the date immediately preceding the date of such assignment, and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days after execution thereof, deliver to Landlord either (x) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Landlord, duly executed by Tenant, together with an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed from and after the date of assignment, or (y) a duplicate original sublease in form and substance reasonably satisfactory to Landlord, duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new Partners, the withdrawal, retirement, death, incompetency or bankruptcy of any Partner, or the reallocation of partnership interests among the Partners shall not constitute an assignment of this Lease, provided the principal purpose of any of the foregoing is not to circumvent the restrictions on assignment set forth in the provisions of this Article 12. The reorganization of Tenant from a professional corporation into a partnership or the reorganization of a Tenant from a partnership into a professional corporation, shall not constitute an assignment of this Lease, provided that immediately following such reorganization the Partners of Tenant shall be the same as the shareholders of Tenant existing immediately prior to such reorganization, or the shareholders of Tenant shall be the same as the Partners of Tenant existing immediately prior to such reorganization, as the case may be. If Tenant shall become a professional corporation, each individual shareholder in Tenant and each employee of a professional corporation which is a shareholder in Tenant shall have the same personal liability as such individual or employee would have under this Lease if Tenant were a partnership and such individual or employee were a Partner in Tenant. If any individual Partner in Tenant is or becomes an employee of a professional corporation, such individual shall have the same personal liability under this Lease as such individual would have if he and not the professional corporation were a Partner of Tenant.
(C) Except as set forth above, either a transfer (including the issuance of treasury stock or the creation and issuance of new stock or a new class of stock) of a controlling interest in the shares of Tenant or of any entity which has an interest in Tenant through one or more intermediaries (if Tenant or such entity is a corporation or trust) or a transfer of a majority of the total interest in Tenant or of any entity which has an interest in Tenant through one or more intermediaries (if Tenant or such entity is a partnership or other entity) at any one time or over a period of time through a series of transfers, shall be deemed an assignment of this Lease and shall be subject to all of the provisions of this Article 12, including, without limitation, the requirement that Tenant obtain Landlord's prior consent thereto. The transfer of shares of Tenant or of any entity which has an interest in Tenant through one or more intermediaries (if Tenant or such entity is a corporation or trust) for purposes of this Section 12.4 shall not include the sale of shares by persons other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, which sale is effected through the "over-the-counter market" or through any recognized stock exchange.
Section 12.5. If, at any time after the originally named Tenant herein may ------------- have assigned Tenant's interest in this Lease, this Lease shall be disaffirmed or rejected in any proceeding of the types described in paragraph (E) of Section 16.1 hereof, or in any similar proceeding, or in the event of termination of this Lease by reason of any such proceeding or by reason of lapse of time following notice of termination given pursuant to said Article 16 based upon any of the Events of Default set forth in such paragraph, any prior Tenant, including, without limitation, the originally named Tenant, upon request of Landlord given within thirty (30) days next following any such disaffirmance, rejection or termination (and actual notice thereof to Landlord in the event of a disaffirmance or rejection or in the event of termination other than by act of Landlord), shall (1) pay to Landlord all Fixed Rent, Escalation Rent and other items of Rental due and owing by the assignee to Landlord under this Lease to and including the date of such disaffirmance, rejection or termination, and (2) as "tenant", enter into a new lease with Landlord of the Premises for a term commencing on the effective date of such disaffirmance, rejection or termination and ending on the Expiration Date, unless sooner terminated as in such lease provided, at the same Fixed Rent and upon the then executory terms, covenants and conditions as are contained in this Lease, except that (a) Tenant's rights under the new lease shall be subject to the possessory rights of the assignee under this Lease and the possessory rights of any person claiming through or under such assignee or by virtue of any statute or of any order of any court, (b) such new lease shall require all defaults existing under this Lease to be cured by Tenant with due diligence, and (c) such new lease shall require Tenant to pay all Escalation Rent reserved in this Lease which, had this Lease not been so disaffirmed, rejected or terminated, would have accrued under the provisions of Article 27 hereof after the date of such disaffirmance, rejection or termination with respect to any period prior thereto. If any such prior Tenant shall default in its obligation to enter into said new lease for a period of ten (10) days next following Landlord's request therefor, then, in addition to all other rights and remedies by reason of such default, either at law or in equity, Landlord shall have the same rights and remedies against such Tenant as if such Tenant had entered into such new lease and such new lease had thereafter been terminated as of the commencement date thereof by reason of such Tenant's default thereunder.
(A) Notwithstanding the provisions of Section 12.1 hereof, ------------- if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.412.6, Landlord shall not unreasonably withhold withhold, condition or delay its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant)Premises, provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:no
Appears in 1 contract
Sources: Lease Agreement (Musicmaker Com Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 Except as expressly permitted herein, Tenant, without the prior consent of Landlord in each instance, (A) The Tenant shall not (ai) assign its rights or delegate its duties under this Lease or (whether by operation of law, transfers of interests in Tenant or otherwise), ii) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (biii) sublet, or permit the subletting of, the Premises or any part thereofthereof without Landlord’s written consent, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant may, without the prior consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers which shall not be granted access unreasonably withheld in the case of a prospective assignee or Lease14TerraceDrive 12/15/2012 sublessee having a credit worthiness at least equal to operate such equipmentTenant’s at the commencement of this Lease, and for uses acceptable to Landlord. In the event of a permitted assignment or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to timesublease, Tenant shall promptly furnish Landlord with remain liable for all of Tenant’s responsibilities and obligations under this Lease.
(B) Any reorganization, consolidation and/or restructuring of the Tenant shall be deemed an assignment of this Lease or a list sublet of such customers and identify the equipment of such customers located in the Premises.
Section 12.2 13.2. If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 12Article, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long as Net2000 Communications Real Estatethan Tenant, Inc. whether or a Related Entity is Tenant hereunder, Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest not in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) violation of this Section 12.4Article, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given may collect an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant amount equal to the then executory provisions Fixed Rent plus any other items of such sublease, except that Landlord shall not (i) be liable for any previous act Rental or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound other sums paid by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except user or occupant as a fee for servicesits use and occupancy, repairs, maintenance and restoration provided for under shall apply the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect net amount collected to the subleased space at Landlord's expenseFixed Rent and the other items of Rental reserved in this Lease. No such assignment, it being expressly understoodsubletting, howeveroccupancy, that Landlord or use, nor any such collection or application of Rental or fee for use and occupancy, shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such option with respect to assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any extension circumstances, relieve Tenant of such subletting or any subsequent subletting of the Premises affected therebyits obligations under this Lease.
(A) Section 13.3. In connection the event that Landlord shall enter into a lease with any subletting of all or any a potential tenant for the remaining portion of the Premises, Landlord shall ; Tenant agrees that there will be entitled a need to and Tenant shall pay share the dock area in order to Landlord a sum equal to fifty percent (50%) access the remaining portions of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenantthe warehouse.
(B) For purposes of this Lease:
Appears in 1 contract
Sources: Lease Agreement (Fenix Parts, Inc.)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 14.1 Except as expressly permitted hereinotherwise provided in this Article 14, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant's interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, . Tenant shall not advertise or (c) permit the Premises authorize a broker to advertise for a subtenant or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayassignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereofLandlord, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers which shall not be granted access to operate such equipment, unreasonably withheld or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premisesdelayed.
Section 12.2 14.2 If Tenant's interest in this Lease is shall be assigned in violation of the provisions of this Article 1214, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long than Tenant, whether or not in violation of this Article 14, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as Net2000 Communications Real Estatea fee for its use and occupancy, Inc. or a Related Entity is Tenant hereunder, Tenant and shall have apply the privilege subject net amount collected to the terms Fixed Rent and conditions hereinafter set forth, without the consent items of Landlord, to assign its interest Rental reserved in this Lease (i) to any corporation which is a successor to Net2000 Communications Real EstateLease. No such assignment, Inc. either by merger or consolidationsubletting, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities)occupancy, or (iii) to a corporation use, whether with or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised nor any such collection or application of Rental or fee for subletting at use and occupancy, shall be deemed a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");waiver by
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant any subsequent amendment hereof, or for use in accordance with the standards of use of other tenancies in the Building; (b) materially Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all the liability under this Section 14.2 of the right, title and interest of Tenant, as sublessor under assigning Tenant shall continue to be no greater than if such sublease, and amendment had not been made (unless such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord party shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not have expressly provided consented in such sublease, which therefore accrued writing to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"amendment). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(Ba) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease:, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 15.1. Except as expressly permitted hereinotherwise provided in this Article 15, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant's interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayshall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipment, or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 15.2. If Tenant's interest in this Lease is shall be assigned in violation of the provisions of this Article 1215, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, \DMS\KWS\40736.5 -45-
(a) any person other than
subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 12.3 As long as Net2000 Communications Real Estate, Inc. or a Related Entity is Tenant hereunder, 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have the privilege subject expressly consented in writing to the terms and conditions hereinafter set forthsuch amendment).
(A) For purposes of this Article 15, without the consent of Landlord, to assign its interest in this Lease (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any general or limited liability company, partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interest in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidationrecognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders or members of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interest of such tenant or subtenant, shall be deemed an assignment of this Lease, except that the issuance or increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, as part of a public offering or "stock-split" of such capital stock of such tenant or subtenant shall not be deemed to be an assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15, (v) a modification, amendment or extension of a sublease shall be deemed a sublease; and (vi) the change or conversion of Tenant to a purchaser limited liability company, a limited liability partnership or any other entity which possesses the characteristics of all a limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 15.
(B) The provisions of clauses (a), (c) and (d) of Section 15.1 and Section 15.4(B)(3)(iii) shall not apply to transactions with a corporation or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed a limited liability company into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's liabilities)assets are transferred (provided such merger, consolidation or (iii) transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% in excess of the outstanding voting stock net worth of a corporationTenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, or other majority equity and control interest whichever is greater) or, if Tenant is not a corporation) (any such entity being partnership, with a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding successor partnership, nor shall the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not clauses (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet), (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information Section 15.1 apply to transactions with an entity that Landlord may reasonably requestcontrols or is controlled by Tenant or is under common control with Tenant. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to notify Landlord a sum equal to fifty percent (50%) of before any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenantsuch transaction is consummated.
(B) For purposes of this Lease:
Appears in 1 contract
Sources: Lease Agreement (Ampex Corp /De/)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 15.1. Except as expressly permitted hereinotherwise provided in this Article 15, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayshall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be granted access to operate such equipment, or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the PremisesLandlord.
Section 12.2 15.2. If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 1215, such assignment shall be void invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long as Net2000 Communications Real Estatethan Tenant, Inc. whether or a Related Entity is Tenant hereundernot in violation of this Article 15, Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use after default by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord mayof any term, at covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its optionobligations under this Lease. The consent by Landlord to any assignment, take over subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord’s consent shall be deemed without more to have assumed all of the right, title obligations arising under this Lease from and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such terminationassignment and shall execute and deliver to Landlord, re-entry or dispossess by Landlord under this Lease upon demand, an instrument confirming such assumption. Notwithstanding and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior subsequent to any proposed subletting Tenant assignment, Tenant’s primary liability hereunder shall submit a statement to Landlord (a "Sublease Statement") containing the following information: continue notwithstanding (a) the name and address of the proposed subtenantany subsequent amendment hereof, or (b) a description Landlord’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 15.2 of the portion of the Premises assigning Tenant shall continue to be sublet, no greater than if such amendment had not been made (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord unless such party shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, expressly consented in writing to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"such amendment). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with For purposes of this Article 15, (i) the transfer of a majority of the issued and outstanding capital stock of any subletting corporate tenant, or of all a corporate subtenant, or the transfer of a majority of the total interest in any general or limited liability company, partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interest in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter market” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant and/or the creation of one or more additional classes of capital stock of any corporate tenant or any portion corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders or members of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the Premisesissued and outstanding capital stock or membership interest of such tenant or subtenant, Landlord shall be entitled deemed an assignment of this Lease, except that the issuance or increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, as part of a public offering or “stock-split” of such capital stock of such tenant or subtenant shall not be deemed to be an assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15, (v) a modification, amendment or extension of a sublease shall be deemed a sublease; and (vi) the change or conversion of Tenant to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of a limited liability shall pay be deemed an assignment. Tenant agrees to furnish to Landlord a sum equal to fifty percent (50%) on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenantthis Article 15.
(B) For purposes The provisions of clauses (a), (c) and (d) of Section 15.1 and Section 15.4(B)(3)(iii) shall not apply to transactions with a corporation or a limited liability company into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant’s assets are transferred (provided such merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease:Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clauses (a), (c) and (d) of Section 15.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
Sources: Lease Agreement (Ampex Corp /De/)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 12.1 15.1. Except as expressly permitted hereinotherwise provided in this Article 15, Tenant, without the prior consent of Landlord in each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise), ; or (b) mortgage or encumber its Tenant’s interest in this Lease, in whole or in part, ; or (bc) sublet, or permit the subletting of, the Premises or any part thereof, ; or (cd) permit the Premises or Licensed Area(s) or any part thereof to be occupied, occupied or used for desk space, mailing privileges or otherwise, otherwise by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant mayshall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereofLandlord, place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers which shall not be granted access unreasonably withheld, conditioned or delayed to operate such equipment, the form of Tenant’s “flyer” or the right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premisesother advertisement.
Section 12.2 15.2. If Tenant's ’s interest in this Lease is shall be assigned in violation of the provisions of this Article 1215, such assignment shall be void invalid and of no force and effect against Landlord; , provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee assignee, during its occupancy, as a fee for its such use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long than Tenant, whether or not in violation of this Article 15, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as Net2000 Communications Real Estatea fee for its use and occupancy, Inc. and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a Related Entity is waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have the privilege subject expressly consented in writing to the terms and conditions hereinafter set forthsuch amendment).
(A) For purposes of this Article 15, without the consent of Landlord, to assign its interest in this Lease (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of a majority of the issued and outstanding membership interests in a limited liability company tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or parent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the “over-the-counter market” or through any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidationrecognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant, subtenant or parent so that the shareholders or members of such tenant, subtenant or parent existing immediately prior to such transaction or series of transactions shall no longer own a purchaser majority of all the issued and outstanding capital stock or substantially all membership interests of Net2000 Communications Real Estatesuch entity, Inc.'s assets shall be deemed an assignment of this Lease, (provided iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees (x) to furnish to Landlord on request at any time such purchaser information as Landlord may reasonably request that Tenant has not violated the provisions of this Article 15 and (y) upon Landlord’s request, to request from any previously permitted subtenant such information that Landlord may reasonably request that such subtenant has not violated the provisions of this Article 15.
(B) The provisions of clauses (a), (c) and (d) of Section 15.1, Section 15.3(A), Section 15.4(B), Section 15.5 and Section 15.6 shall have also assumed not apply to (and Landlord’s consent shall not be required for)
(i) a change in ownership of Tenant as a result of a merger, consolidation or reorganization or the sale of substantially all of Tenant's liabilities’s assets or membership interests (provided such merger, consolidation, reorganization or transfer of assets or membership interests is for a valid business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant at the time of execution of this Lease); (ii) the sale, exchange, issuance or other transfer of Tenant’s stock on a national stock exchange; or (iii) to a corporation the assignment of this Lease or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership sublease of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereofto, if Landlord shall not exercise its rights pursuant to paragraph (B) of this Section 12.4, Landlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, unless the context otherwise requires, references in this Section 12.4 to the Premises shall be deemed to refer to the portion of the Premises proposed to be sublet by Tenant), provided that:
(1) the Premises shall not without Landlord's prior consent, have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such respects of the other tenancies in the Building,
(4) if Landlord has or within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of the business to be conducted or the proposed use of the Premises by, an entity which controls, is controlled by or is under the proposed subtenant common control of Tenant. Tenant shall not (a) be likely notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory or confidentiality requirements applicable to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and obligations on Tenant's part to be observed and performed under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the which event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement notify Landlord promptly after Tenant is permitted to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Spacedo so.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver of such option with respect to any extension of such subletting or any subsequent subletting of the Premises affected thereby.
(A) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:
Appears in 1 contract