Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may withhold in its sole and absolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “Transfer,” and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee.” (b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure. In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease. (c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within forty-five (45) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-five (45) day period, Landlord shall be deemed to have denied its consent to the proposed Transfer. (d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. (e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned, whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee. If the Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease.
Appears in 1 contract
Assignment/Subletting. (a) Neither Except as provided in this Article 19, neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may withhold in its sole and absolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “"Transfer,” ", and the person to whom Tenant’s 's interest is transferred shall be referred to as a “"Transferee".”
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “"national securities exchange,” " as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, AV-BTRL6.LSE MVD-5/6/97 insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s 's corporate or proprietary structure. In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”") thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s 's check, payable to the order of Landlord, or Landlord’s 's Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to use diligent, good faith efforts to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed TransfereeTransferee including, without limitation, information that would adversely affect the value, marketability, financing or insurability of the Building or Avenel Business Park. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “"Transfer Consideration” " (as defined below) or payable in connection with the proposed Transfer. Within forty-five sixty (4560) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-five sixty (4560) day period, Landlord shall be deemed to have denied its consent to the proposed Transfer. Notwithstanding anything contained herein to the contrary, Landlord will not unreasonably withhold its consent to a Transfer provided (i) such Transferee's net worth shall be equal to at least $16,450,000.00; (ii) such Transferee's business in the Premises shall be substantially comparable to Tenant's business on the date hereof or to research and development facilities similar to those operating in Avenel Business Park; (iii) such Transferee shall assume in writing all of Tenant's obligations hereunder; and (iv) Tenant continues to remain liable under this Lease for the performance of all of the terms contained herein including but not limited to, the payment of Base Rent and all Additional Rent due under this Lease. Notwithstanding any other provision hereof, Landlord shall have the absolute right to refuse consent to any Transfer if at the time of either Tenant's notice of the proposed Transfer or the proposed effective date thereof, there shall exist any uncured default of Tenant or matter which will become a default of Tenant with passage of time unless cured. Landlord's refusal to consent to a Transfer shall be deemed to be reasonable if the proposed Transferee is an entity that is already an occupant of the Building or the Avenel Business Park unless Landlord (or its affiliates) is unable to provide the amount of space required by such occupant. Further, Landlord may deny consent to a proposed Transfer if (i) Landlord is or has been in negotiation with Tenant's proposed Transferee within three (3) months or less of the date of Tenant's proposed Transfer notice to Landlord, as evidenced by any two- way correspondence or other documents between Landlord and the proposed Transferee; or (ii) Landlord is or has been in negotiation with Tenant's proposed Transferee within six (6) months or less of the date of Tenant's proposed Transfer notice to Landlord, as evidenced by a written proposal, letter of intent, broker's report or other written documentation, and the negotiation is confirmed (said confirmation to be obtained by Landlord) by the proposed Transferee.
(d) If this Lease is transferredLandlord consents to a Transfer, the permitted Transferee shall assume by written instrument all of Tenant’s 's obligations under the Lease and such Transferee, at least thirty ten (3010) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s 's undertaking of Tenant’s 's obligations under the Lease. All of such documents shall be subject to Landlord’s 's prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord fifty percent (50%) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, AV-BTRL6.LSE MVD-5/6/97 other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred to as the “"Transfer Consideration”"), but less the reasonable costs and expenses incurred by Tenant to effect such Transfer, and excluding bona fide consideration paid for transfer of Tenant’s 's Property. Following a permitted Transfer of this Lease, Landlord shall send the named Tenant herein, notice of default to the named Tenant's last known Notice address.
(e) Any Transfer without Landlord’s 's consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant's Rend obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest .
(f) Notwithstanding anything set forth in this Lease is assigned, whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee. If the Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected Article 19 to the Basic Rent and Additional Rent payable under this Leasecontrary, Tenant may, without Landlord's consent but neither any with written notice to Landlord given thirty (30) days' prior to the effective date of such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, covenant or condition of assign this Lease or for the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. The listing of any name other than that of Tenant on any door use and occupation of the Premises solely for the purpose set forth in Article 12 to (i) Tenant's parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of the Premises or on any directory in the Buildingassets of Tenant, or otherwise(iii) to a corporation into which Tenant merges or consolidates, provided, however, that in each such event, (1) such assignee shall not operate to vest in possess qualifications for conducting the person or entity so named any right or interest in this Lease or in business at the Premises or be deemed to constitute, or serve as a substitute for, any prior consent the satisfaction of Landlord required under this Article, and it is understood that any Landlord; (2) such listing assignee shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment assume in writing all of Tenant’s interest in this Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default 's obligations hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease.; and
Appears in 1 contract
Sources: Office Lease (Boston Biomedica Inc)
Assignment/Subletting. (a) Neither Except as provided in this Article 19, neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may withhold in its sole and absolute discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “Transfer,” ”, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”.”
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure. In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to use diligent, good faith efforts to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed TransfereeTransferee including, without limitation, information that would adversely affect the value, marketability, financing or insurability of the Building or Avenel Business Park. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within forty-five sixty (4560) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-five sixty (4560) day period, . Landlord shall be deemed to have denied its consent to the proposed Transfer. Notwithstanding anything contained herein to the contrary, Landlord will not unreasonably withhold its consent to a Transfer provided (i) such Transferee’s net worth shall be equal to at least $16,450,000.00; (ii) such Transferee’s business in the Premises shall be substantially comparable to Tenant’s business on the date hereof or to research and development facilities similar to those operating in Avenel Business Park; (iii) such Transferee shall assume in writing all of Tenant’s obligations hereunder; and (iv) Tenant continues to remain liable under this Lease for the performance of all of the terms contained herein including but not limited to, the payment of Base Rent and all Additional Rent due under this Lease. Notwithstanding any other provision hereof, Landlord shall have the absolute right to refuse consent to any Transfer if at the time of either Tenant’s notice of the proposed Transfer or the proposed effective date thereof, there shall exist any uncured default of Tenant or matter which will become a default of Tenant with passage of time unless cured. Landlord’s refusal to consent to a Transfer shall be deemed to be reasonable if the proposed Transferee is an entity that is already an occupant of the Building or the Avenel Business Park unless Landlord (or its affiliates) is unable to provide the amount of space required by such occupant. Further, Landlord may deny consent to a proposed Transfer if (i) Landlord is or has been in negotiation with Tenant’s proposed Transferee within three (3) months or less of the date of Tenant’s proposed Transfer notice to Landlord, as evidenced by any two-way correspondence or other documents between Landlord and the proposed Transferee; or (ii) Landlord is or has been in negotiation with Tenant’s proposed Transferee within six (6) months or less of the date of Tenant’s proposed Transfer notice to Landlord, as evidenced by a written proposal, letter of intent, broker’s report or other written documentation, and the negotiation is confirmed (said confirmation to be obtained by Landlord) by the proposed Transferee.
(d) If this Lease is transferredLandlord consents to a Transfer, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty ten (3010) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord fifty percent (50%) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but less the reasonable costs and expenses incurred by Tenant to effect such Transfer, and excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall send the named Tenant herein, notice of default to the named Tenant’s last known Notice address.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rend obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If .
(f) Notwithstanding anything set forth in this Article 19 to the contrary, Tenant may, without Landlord’s consent but with written notice to Landlord given thirty (30) days’ prior to the effective date of such assignment, assign this Lease for the use and occupation of the Premises solely for the purpose set forth in Article 12 to (i) Tenant’s interest parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of the assets of Tenant, or (iii) to a corporation into which Tenant merges or consolidates, provided, however, that in each such event, (1) such assignee shall possess qualifications for conducting the business at the Premises to the satisfaction of Landlord; (2) such assignee shall assume in writing all of Tenant’s obligations hereunder; and (3) Tenant continues to remain liable under this Lease is assignedfor the performance of all of the terms contained herein including but not limited to, whether or not in violation the payment of Base Rent, and all Additional Rent due under this Lease; provided, however, that the provisions of this Articleparagraph shall not permit a Transfer in the event that Tenant is acquired by another corporation and becomes a subsidiary thereof, Landlord may collect rent from (x) unless Tenant continues to be operated as a separately identified company, substantially in the assignee. If the Premisessame manner as before such acquisition, or any part thereof(y) if, are sublet toafter such acquisition, or occupied as a result thereof. Tenant’s net worth will decline by ten percent (10%) or used by any person or entity other than Tenantmore, whether or not unless in violation either of such cases, the parent of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected party acquiring Tenant agrees to the Basic Rent and Additional Rent payable guaranty Tenant’s obligations under this Lease. The liability of any Guarantor of this Lease shall not be affected as a result of any assignment permitted under this subparagraph (g). Notwithstanding any provisions of clause (i) of this paragraph 19 (f) to the contrary, but neither the provisions of clauses (i), (ii) and (v) of paragraph (b) of this Article 19 shall apply to the transfer or sale of the stock, partnership interests or other ownership interests of any such assignmentTransferee to which Tenant would otherwise be permitted to Transfer its interest under this paragraph (f), subletting, occupancy or use, whether with or and no Transfer will be permitted under this paragraph (f) without Landlord’s prior consent, nor any if such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be Transfer would result in a waiver of any term, covenant or condition Transfer of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenantownership interests in any Transferee to an entity not affiliated with Tenant through common ownership and control. The listing of any name other than that of Tenant on any door It is the intention of the Premises or parties that the provisions of clause (i) of this paragraph 19 (f) are included herein for the Premises or on any directory purpose of providing Tenant with flexibility in the Building, or otherwise, shall manner of operating its business but such provisions are not operate intended to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Articlepermit, and it is understood that any such listing shall constitute do not permit, a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions Transfer of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns an entity outside the ownership family to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon belongs as a means of defeating the subtenant’s receipt other provisions of notice from Landlord specifying same. this Article 19 which require Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject consent to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such subleaseTransfer.
Appears in 1 contract
Sources: Lease (Seracare Life Sciences Inc)
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may shall not unreasonably withhold if the requirements of this Article 19 and the requirements and conditions set forth in its sole and absolute discretion, for any reason or for no reasonother provisions of this Lease are fully complied with. Any such subletting or assignment shall be referred to as a “Transfer,” ”, and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee”.”
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure. In , in no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an amount equal to the greater of One Thousand and No/100 Dollars (i$1,000,00) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within forty-five sixty (4560) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term Term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-five sixty (4560) day period, . Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. hereunder In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all ail of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned, assigned whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee. assignee If the Premises, Premises or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, case Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment, assignment subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, term covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. Tenant The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, Lease nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the the’ application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. same Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. , Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease. If Tenant is a corporation, limited liability company or partnership, Tenant represents that the ownership and power to vote its entire outstanding capital stock or partnership interests belongs to and is vested in the persons listed on Exhibit E; provided, however that the provisions of this sentence shall not apply to a publicly held entity described in clause (i) of paragraph (b) of this Article 19.
Appears in 1 contract
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may shall not unreasonably withhold if the requirements of this Article 19 and the requirements and conditions set forth in its sole and absolute discretion, for any reason or for no reasonother provisions of this Lease are fully complied with. Any such subletting or assignment shall be referred to as a “Transfer,” and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee.”
(b) The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934, or on the Nasdaq National Stock Market), and if shares of such corporation representing more than fifty percent (50%) of the voting stock of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership and if partnership interests of such partnershippartnership representing more than fifty percent (50%) of the voting power or profits and losses of such partnership are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or Trustee in federal or state bankruptcy, insolvency or other proceeding); (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in the majority ownership interest of Tenant, or any guarantor of this Lease or the business operated by TenantLease; or (v) any subletting or assignment which occurs by operation of law, law (including by way of merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure). In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, or Landlord’s Agent, in an the amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to act, in good faith, to apprise Landlord of any adverse or negative financial or marketplace information in its possession known by Tenant concerning the proposed Transfer and and/or the proposed Transferee, but nothing in this subparagraph 19 (c) shall obligate Tenant to reveal mere speculation or rumor or violate any obligation to protect trade secrets or other confidential information. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within forty-forty five (45) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iviii) subject to the terms of subparagraph 19 (a) above, to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Leased Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-forty five (45) day period, Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferredLandlord consents to a Transfer, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval, which approval shall not be unnecessarily withheld, conditioned or delayed. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord (except as otherwise stated in subparagraph 19 (f) below) one half (1/2) of all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred refereed to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property. Following a permitted Transfer of this Lease, Landlord shall not be required to send the named Tenant any notice of default by the approved Transferee.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article 19 shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rent obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If .
(f) Notwithstanding anything set forth in this Article 19 to the contrary, if Tenant fully complies with the requirements and conditions of this Article and other provisions of this Lease, Tenant may Transfer this Lease without Landlord’s consent (and without any obligation to pay any part of the Transfer Consideration described in subparagraph 19 (d) above), if Landlord is advised of any such Transfer within thirty (30) days after any such Transfer occurs, to (i) Tenant’s interest parent or subsidiary corporation or to a corporation under common ownership with and controlled by the same persons who control Tenant, or (ii) any party which acquires substantially all of the assets of Tenant or (iii) to a corporation into which Tenant merges or consolidates; provided, however, that (1) in the case of a Transfer under subparagraph 19 (f) (i) above, such assignee shall possess qualifications for conducting the business at the Premises to the reasonable satisfaction of Landlord; and (2) in the case of any Transfer described above in this subparagraph 19 (f), (x) such assignee shall assume in writing all of Tenant’s obligations hereunder; and (y) Tenant continues to remain liable under this Lease for the performance of all of the terms contained herein including but not limited to, the payment of Base Rent, Annual Operating Costs and all Additional Rent due under this Lease, and further provided that the provisions of this subparagraph 19 (f) shall not permit a Transfer in the event that Tenant is assignedacquired by another corporation and becomes a subsidiary thereof, whether (x) unless Tenant continues to be operated as a separately identified company, substantially in the same manner as before such acquisition, or (y) if, after such acquisition, or as a result thereof, Tenant’s net worth will decline by ten percent (10%) or more, unless in either of such cases, the parent of the parry acquiring Tenant agrees to guaranty Tenant’s obligations under this Lease. The liability of any Guarantor of this Lease shall not be affected as a result of any assignment permitted under this subparagraph (f). It is the intention of the parties that the provisions of clause (i) of this subparagraph 19 (f) are included herein for the purpose of providing Tenant with flexibility in violation the manner of operating its business but such provisions are not intended to permit, and do not permit, a Transfer of this Lease to an entity outside the ownership family to which Tenant belongs as a means of defeating the other provisions of this Article 19 which require Landlord’s consent to a Transfer.
(g) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Article 19, Tenant’s shareholders may sell, transfer and convey their stock in Tenant without Landlord’s consent. The foregoing sentence shall not be deemed to permit what is commonly referred to as a “leveraged buy-out” transaction or such other transfer or sale which adversely affects the net worth of Tenant or any successor entity, and all of the provisions of this Article, Landlord may collect rent from the assignee. If the Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord Article 19 shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such subleasetransaction.
Appears in 1 contract
Assignment/Subletting. (a) a. Neither Tenant, nor any of its permitted successors or assigns, shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or assign all or any of its interest in this Lease, or sublet or permit the Premises, or any part thereof, to be used by others, including, but not by way of limitation, concessionaires or licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may withhold in its sole and absolute reasonable discretion, for any reason or for no reason. Any such subletting or assignment shall be referred to as a “"Transfer,” ", and the person to whom Tenant’s 's interest is transferred shall be referred to as a “"Transferee".”
(b) b. The prohibition against any Transfer without the prior written consent of Landlord shall apply, without limitation, to the following circumstances, each of which shall be deemed a Transfer: ; (i) if Tenant or any guarantor of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “"national securities exchange,” " as defined in the Securities Exchange Act of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporation; (ii) if Tenant or any guarantor of this Lease is a partnership, any change in control or ownership of such partnership; (iii) any transfer by sale, assignment, bequest, inheritance, operation of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; , or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s 's corporate or proprietary structure. In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) c. In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”") thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s 's check, payable to the order of Landlord, or Landlord’s 's Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Minimum Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “"Transfer Consideration” " (as defined below) or payable in connection with the proposed Transfer. Within forty-five (45) days of the receipt of the Transfer Notice, Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; , (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that If Landlord fails consents to give Tenant written notice of its election hereunder within the specified forty-five (45) day period, Landlord shall be deemed to have denied its consent to the proposed a Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s 's obligations under the this Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s 's undertaking of to perform Tenant’s 's obligations under the this Lease. All of such documents shall be subject to Landlord’s 's prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred to as the “"Transfer Consideration”"), but excluding bona fide consideration paid for transfer of Tenant’s Property.
(e) Any 's property. Following a permitted Transfer without Landlord’s consentof this Lease, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, Landlord shall not be binding upon Landlord, and shall confer no rights upon required to send the named Tenant any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective approved Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned, whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee. If the Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, nor a subletting, occupancy or use of the Premises or any part thereof by any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease.
Appears in 1 contract
Sources: Lease (Inktomi Corp)
Assignment/Subletting. (a) Neither Tenant, nor any of its permitted successors or assigns, Tenant shall transfer, assign, mortgage, encumber, or, by operation of law or otherwise, pledge, hypothecate, or not assign all or any of its interest in this Lease, or sublet or license the Premises or any portion thereof, or advertise the premises for assignment or subletting or permit the Premises, occupancy of all or any part thereof, to be used portion of the Premises by others, including, but not by way anybody other than Tenant (all of limitation, licensees of Tenant, without the prior written consent of Landlord, in each instance, which consent Landlord may withhold in its sole and absolute discretion, for any reason or for no reason. Any such subletting or assignment shall be foregoing actions are sometimes collectively referred to as a “Transfer,” and the person to whom Tenant’s interest is transferred shall be referred to as a “Transferee.”
(b"transfer") The prohibition against any Transfer without obtaining, on each occasion, the prior written consent of Landlord which consent shall applynot be unreasonably withheld or delayed. A transfer shall include, without limitation, any transfer of Tenant's interest in this Lease by operation of law, merger or consolidation of Tenant into any other firm or corporation or any liquidation of Tenant or a substantial part of Tenant's assets resulting in Tenant's having less than 80% of the net worth (as reflected in its most recent fiscal year end financial statements) that it has on the date hereof. Tenant shall not offer to the following circumstances, each of which shall be deemed make or enter into negotiations with respect to a Transfer: transfer to (i) if Tenant any tenant (or any guarantor affiliate of this Lease is a corporation (other than a corporation, the outstanding voting stock of which is listed on a “national securities exchange,” as defined such tenant) in the Securities Exchange Act Building, in Ledgemont Research Park or in any building within a 10 mile radius in which, to Tenant's actual knowledge, principals of 1934), and if shares of such corporation are transferred by sale, assignment, bequest, inheritance, operation of law or otherwise (including, without limitation, a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceeding), so as to result in or make possible a change in the present control of such corporationThe Beal ▇▇▇panies hold ownership interests; (ii) if Tenant any party with whom, to Tenant's actual knowledge, Landlord is then negotiating with respect to space in the Building or any guarantor of this Lease is a partnership, any change in control or ownership of such partnershipLedgemont Research Park; (iii) any transfer by saleparty which would be of such type, assignmentcharacter or condition as to be inappropriate as a tenant for a first class office building. Notwithstanding the foregoing, bequest, inheritance, operation Landlord hereby agrees to the assignment of law or other disposition of all or substantially all of the assets of Tenant or any guarantor which results in or makes possible a change in the present control of the business of Tenant or any such guarantor; (iv) any other change in ownership of Tenant, any guarantor of this Lease or the business operated by Tenant; or (v) any subletting or assignment which occurs by operation of law, merger, consolidation, or reorganization or any change of Tenant’s corporate or proprietary structure. In no event may Tenant assign this Lease, or sublease the Leased Premises, if Tenant is in default under this Lease.
(c) In the event that Tenant desires to effect a Transfer hereunder, Tenant shall give Landlord written notice (the “Transfer Notice”) thereof. To be effective, the Transfer Notice shall be accompanied by Tenant’s check, payable to the order of Landlord, subletting or Landlord’s Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%) of the Base Rent to compensate Landlord for the cost of reviewing the proposed Transfer and specify the proposed Transferee, and the proposed terms of the Transfer, and contain such information about the proposed Transferee, its experience, its financial situation, its methods of operation, and its impact on the Building, as a prudent businessman would require in making the Transfer decision. Tenant specifically agrees to apprise Landlord of any adverse or negative information in its possession concerning the proposed Transfer and the proposed Transferee. The Transfer Notice shall also contain a certificate by Tenant (or an officer or general partner of Tenant if Tenant is a corporation or partnership) of all “Transfer Consideration” (as defined below) or payable in connection with the proposed Transfer. Within forty-five (45) days of the receipt of the Transfer Notice, Landlord shall, by written notice to Tenant, elect: (i) to permit the proposed Transfer; (ii) to terminate this Lease; (iii) to sublet with the right to further sublet from Tenant for the balance of the term of this Lease (a) all of the Premises, or (b) only so much of the Lease Premises as Tenant proposed to Transfer, at the same rental as Tenant is obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed Transfer, in which event Tenant shall continue to occupy the Lease Premises and comply with all of the terms and conditions hereof. In the event that Landlord fails to give Tenant written notice of its election hereunder within the specified forty-five (45) day period, Landlord shall be deemed to have denied its consent to the proposed Transfer.
(d) If this Lease is transferred, the permitted Transferee shall assume by written instrument all of Tenant’s obligations under the Lease and such Transferee, at least thirty (30) days prior to the effective date of the permitted Transfer, shall deliver to Landlord the proposed sublease, assignment and assumption agreement or other instrument evidencing the Transfer and the Transferee’s undertaking of Tenant’s obligations under the Lease. All of such documents shall be subject to Landlord’s prior written approval. In the event of a permitted Transfer, Tenant shall continue to be liable hereunder, and shall not be released from performance hereunder. In addition to the Rent reserved hereunder, Tenant shall pay to Landlord all monies, property and other consideration of every kind whatsoever paid or payable to Tenant in consideration of or related to such Transfer and for all property transferred to the Transferee, as all or part of the consideration including, without limitation, fixtures, other Leasehold Improvements, furniture, equipment and furnishings (collectively, all of the foregoing monies, property and other consideration shall be referred to as the “Transfer Consideration”), but excluding bona fide consideration paid for transfer of Tenant’s Property.
(e) Any Transfer without Landlord’s consent, whether as a result of any act or omission of Tenant, or by operation of law or otherwise, shall not be binding upon Landlord, and shall confer no rights upon any third person. Each such unpermitted Transfer shall, without notice or grace period of any kind, constitute a default by Tenant under this Lease. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. Notwithstanding anything in this Article or any decision of any court to the contrary, it shall be deemed reasonable for Landlord to refuse consent to a Transfer if, at the time Landlord’s consent is requested, other premises in the Building suitable for the prospective Transferee’s use are (or soon will be) available. No reference in this Lease to assignees, subtenants or licensees shall be deemed to be a consent by Landlord to the occupancy of the Leased Premises by any such assignee, subtenant or licensee. If Tenant’s interest in this Lease is assigned, whether or not in violation of the provisions of this Article, Landlord may collect rent from the assignee. If the Premises, or any part thereof, are sublet to, or occupied or used by any person or entity other than Tenant, whether or not in violation of the Article, Landlord may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the amount collected to the Basic Rent and Additional Rent payable under this Lease, but neither any such assignment, subletting, occupancy or use, whether with or without Landlord’s prior consent, nor any such collection or application shall be deemed to create any privity between Landlord and any subtenant or to be a waiver of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant. The listing of any name other than that of Tenant on any door of the Premises or of the Premises or on any directory in the Building, or otherwise, shall not operate to vest in the person or entity so named any right or interest in this Lease or in the Premises or be deemed to constitute, or serve as a substitute for, any prior consent of Landlord required under this Article, and it is understood that any such listing shall constitute a privilege extended by Landlord which shall be revocable at Landlord’s will by notice to Tenant. Neither an assignment of Tenant’s interest in this Lease, nor a subletting, occupancy or use licensing of the Premises or any part portion thereof by to any person or entity other than Tenant, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the collection of rent by Landlord from any person or entity other than Tenant as provided in this Article, nor the application of any such rent as provided in this Article shall, in any circumstances, relieve Tenant from its obligation fully to observe and perform the terms, covenants and conditions of this Lease on Tenant’s part to be observed and performed. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such subtenant to pay said rent directly to Landlord upon the subtenant’s receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such subtenant as the tenant under this Lease. Each sublease is subject to the condition that if the Lease Term is terminated as a result of Tenant’s default or if Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option (but expressly without any obligation to so elect) the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the terms of such sublease.a
Appears in 1 contract