Allocation of Assignment Profit and Subleasing Profit. (a) If Landlord’s consent to any assignment of this Lease or to any sublease shall be required hereunder and shall have been given, Tenant shall, in consideration therefor, pay to Landlord: (i) In the case of any such assignment, an amount equal to 50% of the amount (which amount is herein called the “Assignment Profit”) by which (x) all sums and other consideration actually paid to Tenant and any of its Affiliates by or on behalf of the assignee for or by reason of such assignment (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property, and, if such consideration is paid in installments, any interest paid on such installments) exceeds (y) the aggregate of (1) reasonable legal and advertising fees and expenses, transfer taxes and customary brokerage commissions paid by Tenant in connection with such assignment and sums payable to Landlord pursuant to Section 10.09(a)(xiii) of this Lease, (2) net payments for any leasehold improvements made for the assignee by Tenant and construction costs related thereto (or allowances in lieu thereof paid by Tenant) pursuant to the terms of such assignment and other out-of-pocket cash concessions made by Tenant pursuant to the terms of such assignment, (3) the unamortized cost (in excess of the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) of the Initial Tenant Work and any other Alterations in the Premises (unless demolished by the assignee within 9 months after the effective date of such assignment), based on the amortization of such cost on a straight-line basis from the Rent Commencement Date over the Initial Term of this Lease (in the case of the Initial Tenant Work) or from the date placed in service over the balance of the initial or other term of this Lease during which made (in the case of other Alterations), (4) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property to the assignee, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, and (5) the Base Rent and Additional Rent paid pursuant to Article 4 of the Lease commencing on the date Tenant shall have vacated the entire Premises and ending on the earlier of (x) the 90th day thereafter and (y) the day immediately preceding the effective date of the assignment. The amounts payable to Landlord under this clause (i) shall be due and payable within 10 days after Tenant’s or any of its Affiliates’ receipt of payment from or on behalf of the assignee (including any amounts received as damages or other sums from such assignee on account of such assignee’s default in connection with said assignment). (ii) In the case of any such sublease, any Gross Sublease Profit for any month during the term of the sublease shall be applied as follows: first, retained by Tenant until it has recovered any Gross Sublease Loss from all earlier months of the term of such sublease, second, retained by Tenant until it has recovered its Sublease Costs, and third, 50% retained by Tenant (“Tenant’s Sublease Profit”) and 50% paid by Tenant to Landlord. As used herein the term “Gross Sublease Profit” and “Gross Sublease Loss” shall mean, for any month for any sublease, the excess or deficiency, as the case may be, between (x) any rents, additional charges or other consideration actually paid to Tenant or any of its Affiliates under or by reason of the sublease (and any related instruments) by or on behalf of the subtenant (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property) and any sums received by Tenant or any of its Affiliates from or on behalf of the subtenant on account of profits received by such subtenant from an underletting) and (y) the aggregate of (1) the Rent and all other sums to be paid by Tenant under this Lease for such month in respect of the space covered by the sublease (at the rate per Rentable Square Foot payable by Tenant hereunder), (2) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, (3) in the case of the rental of Tenant’s equipment, furniture, furnishing or other personal property, the amortization or depreciation thereof during such month determined on the basis of Tenant’s federal income tax return, (4) the amortization or depreciation during such month of all costs (hard and soft) incurred by Tenant (and not reimbursed by the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) for the Initial Tenant Work or other Alterations in the space covered by the sublease (excluding Alterations made in connection with such sublease), determined by amortizing or depreciating such costs on a straight-line basis over the Initial Term of this Lease, commencing on the Rent Commencement Date (in the case of the costs of the Initial Tenant Work) or the in-service date (for other Alterations), unless Tenant or the subtenant demolishes such Initial Tenant Work or Alterations within 9 months after the effective date of such sublease, and (5) the Base Rent and Additional Rent under Article 4 paid by Tenant in respect of the space covered by the sublease (at the rate per Rentable
Appears in 1 contract
Allocation of Assignment Profit and Subleasing Profit. (a) If Landlord’s consent to any assignment of this Lease or to any sublease shall be required hereunder and shall have been given, Tenant shall, in consideration therefor, pay to Landlord:Landlord:
(i) In the case of any such assignment, an amount equal to 50% of the amount (which amount is herein called the “Assignment Profit”) by which (x) all sums and other consideration actually paid to Tenant and any of its Affiliates by or on behalf of the assignee for or by reason of such assignment (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property, and, if such consideration is paid in installments, any interest paid on such installments) exceeds (y) the aggregate of of
(1) reasonable legal and advertising fees and expenses, transfer taxes and customary brokerage commissions paid by Tenant in connection with such assignment and sums payable to Landlord pursuant to Section 10.09(a)(xiii) of this Lease, (2) net payments for any leasehold improvements made for the assignee by Tenant and construction costs related thereto (or allowances in lieu thereof paid by Tenant) pursuant to the terms of such assignment and other out-of-pocket cash concessions made by Tenant pursuant to the terms of such assignment, (3) the unamortized cost (in excess of the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) of the Initial Tenant Work and any other Alterations in the Premises (unless demolished by the assignee within 9 months after the effective date of such assignment), based on the amortization of such cost on a straight-line basis from the Rent Commencement Date over the Initial Term of this Lease (in the case of the Initial Tenant Work) or from the date placed in service over the balance of the initial or other term of this Lease during which made (in the case of other Alterations), (4) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property to the assignee, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, and (5) the Base Rent and Additional Rent paid pursuant to Article 4 of the Lease commencing on the date Tenant shall have vacated the entire Premises and ending on the earlier of (x) the 90th day thereafter and (y) the day immediately preceding the effective date of the assignment. The amounts payable to Landlord under this clause (i) shall be due and payable within 10 days after Tenant’s or any of its Affiliates’ receipt of payment from or on behalf of the assignee (including any amounts received as damages or other sums from such assignee on account of such assignee’s default in connection with said assignment).assignment).
(ii) In the case of any such sublease, any Gross Sublease Profit for any month during the term of the sublease shall be applied as follows: first, retained by Tenant until it has recovered any Gross Sublease Loss from all earlier months of the term of such sublease, second, retained by Tenant until it has recovered its Sublease Costs, and third, 50% retained by Tenant (“Tenant’s Sublease Profit”) and 50% paid by Tenant to Landlord. As used herein the term “Gross Sublease Profit” and “Gross Sublease Loss” shall mean, for any month for any sublease, the excess or deficiency, as the case may be, between (x) any rents, additional charges or other consideration actually paid to Tenant or any of its Affiliates under or by reason of the sublease (and any related instruments) by or on behalf of the subtenant (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property) and any sums received by Tenant or any of its Affiliates from or on behalf of the subtenant on account of profits received by such subtenant from an underletting) and (y) the aggregate of (1) the Rent and all other sums to be paid by Tenant under this Lease for such month in respect of the space covered by the sublease (at the rate per Rentable Square Foot payable by Tenant hereunder), (2) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, (3) in the case of the rental of Tenant’s equipment, furniture, furnishing or other personal property, the amortization or depreciation thereof during such month determined on the basis of Tenant’s federal income tax return, (4) the amortization or depreciation during such month of all costs (hard and soft) incurred by Tenant (and not reimbursed by the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) for the Initial Tenant Work or other Alterations in the space covered by the sublease (excluding Alterations made in connection with such sublease), determined by amortizing or depreciating such costs on a straight-line basis over the Initial Term of this Lease, commencing on the Rent Commencement Date (in the case of the costs of the Initial Tenant Work) or the in-service date (for other Alterations), unless Tenant or the subtenant demolishes such Initial Tenant Work or Alterations within 9 months after the effective date of such sublease, and (5) the Base Rent and Additional Rent under Article 4 paid by Tenant in respect of the space covered by the sublease (at the rate per RentableRentable
Appears in 1 contract
Samples: Lease Agreement
Allocation of Assignment Profit and Subleasing Profit. (a) If Landlord’s consent to any assignment of this Lease or to any sublease shall be required hereunder and shall have been given, Tenant shall, in consideration therefor, pay to Landlord, as Additional Rent:
(i) In the case of any such assignment, an amount equal to 50% of the amount (which amount is herein called the “Assignment Profit”) by which (x) all sums and other consideration actually paid to Tenant and any of its Affiliates by or on behalf of the assignee for or by reason of such assignment (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property, and, if such consideration is paid in installments, any interest paid on such installments) exceeds (y) the aggregate of (1) reasonable legal and advertising fees and expenses, transfer taxes and customary brokerage commissions paid by Tenant in connection with such assignment and sums payable to Landlord pursuant to Section 10.09(a)(xiii) of this Leasetaxes, (2) net payments for any leasehold improvements made for the assignee by Tenant and construction costs related thereto (or allowances in lieu thereof paid by Tenant) pursuant to the terms of such assignment and any other out-of-pocket cash concessions made by Tenant pursuant to the terms of such assignment, (3) the unamortized cost (customary brokerage commissions paid by Tenant in excess of the Work Allowance (assuming the Work Allowance connection with such assignment and amounts paid to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) of the Initial Tenant Work and any other Alterations in the Premises (unless demolished by the assignee within 9 months after the effective date of such assignment), based on the amortization of such cost on a straight-line basis from the Rent Commencement Date over the Initial Term of this Lease (in the case of the Initial Tenant Work) or from the date placed in service over the balance of the initial or other term of this Lease during which made (in the case of other AlterationsLandlord pursuant to Section 10.09(xiv), (42) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property to the assignee, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, and (5) the Base Rent and Additional Rent paid pursuant to Article 4 of the Lease commencing on the date Tenant shall have vacated the entire Premises and ending on the earlier of (x) the 90th day thereafter and (y) the day immediately preceding the effective date of the assignment. The amounts payable to Landlord under this clause (i) shall be due and payable within 10 30 days after Tenant’s or any of its Affiliates’ receipt of payment from or on behalf of the assignee (including any amounts received as damages or other sums from such assignee on account of such assignee’s default in connection with said assignment).
(ii) In the case of any such sublease, any Gross Sublease Profit for any month during the term an amount equal to 50% of the sublease shall be applied as follows: first, retained by Tenant until it has recovered any Gross Sublease Loss from all earlier months of amount (which amount is herein called the term of such sublease, second, retained by Tenant until it has recovered its Sublease Costs, and third, 50% retained by Tenant (“Tenant’s Sublease Subleasing Profit”) and 50% paid ), calculated on a monthly basis, by Tenant to Landlord. As used herein the term “Gross Sublease Profit” and “Gross Sublease Loss” shall mean, for any month for any sublease, the excess or deficiency, as the case may be, between which (x) any rents, additional charges or other consideration actually paid to Tenant or and any of its Affiliates under or by reason of the sublease (and any related instruments) by or on behalf of the subtenant (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property) and any sums received by Tenant or and any of its Affiliates from or on behalf of the subtenant on account of profits received by such subtenant from an underletting) and ), shall exceed (y) the aggregate of (1) the Rent and all other sums to be paid by Tenant under this Lease for such month hereunder in respect of the term of the sublease and of the space covered by demised under the sublease (at the rate per Rentable Square Foot payable by Tenant hereunder), (2) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, (3) in the case of the rental of Tenant’s equipmentreasonable legal and advertising fees and expenses, furnituretransfer taxes, furnishing or other personal property, the amortization or depreciation thereof during such month determined on the basis of Tenant’s federal income tax return, (4) the amortization or depreciation during such month of all costs (hard customary brokerage commissions and soft) incurred by Tenant (customary and not reimbursed by the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) for the Initial Tenant Work or other Alterations in the space covered by the sublease (excluding Alterations made in connection with such sublease), determined by amortizing or depreciating such costs on a straight-line basis over the Initial Term of this Lease, commencing on the Rent Commencement Date (in the case of the costs of the Initial Tenant Work) or the in-service date (for other Alterations), unless Tenant or the subtenant demolishes such Initial Tenant Work or Alterations within 9 months after the effective date of such sublease, and (5) the Base Rent and Additional Rent under Article 4 reasonable work allowances paid by Tenant in connection with the subletting, and (4) net payments for any leasehold improvements made for the subtenant by Tenant (or net allowances in lieu thereof paid by Tenant) and any other concessions made by Tenant pursuant to the terms of the sublease; it being agreed that the amounts described in this clause (y) shall be deducted from the first amounts received by Tenant under clause (x) above before payment of any Subleasing Profit to Landlord. The amounts payable to Landlord under this clause (ii) in respect of the space covered Subleasing Profit for a sublease shall be paid in equal monthly installments in arrears over the term of the sublease in question (not later than 30 days after Tenant’s and any of its Affiliates’ receipt of such amount from or on behalf of the subtenant). If, however, the sublease is terminated as a result of a default thereunder by the subtenant, Tenant’s obligation to pay further sums to Landlord shall terminate except with regard to any damages or other sums thereafter received by Tenant from such subtenant to the extent attributable to any rents or other amounts included in the Subleasing Profit calculation, of which Tenant shall pay to Landlord 50% on account of the Subleasing Profit.
(b) Together with any requests for Landlord’s consent to an assignment or sublease (or with Tenant’s Transfer Notice to be given to Landlord pursuant to Section 10.08(a), as the case may be, Tenant shall furnish Landlord with such information and documents relating to the estimated calculation of Assignment Profit and Subleasing Profit as shall be reasonably appropriate to enable Landlord to verify the same, and Tenant shall promptly furnish Landlord with such additional information or documents related thereto as Landlord may reasonably request. Any dispute arising under or in connection with any provision of this Section 10.12 shall be determined by arbitration pursuant to Article 21. In the event the arbitration determines that the monthly amount owed by Tenant to Landlord under this Section 10.12 exceeds the monthly amount claimed to be so owed by Tenant, then Tenant shall pay Landlord any such deficiency together with interest thereon at the rate per RentablePrime Rate from the date such amount (or portion thereof) was owed to the date paid. The obligations of Tenant and the remedies of Landlord under this Section 10.12 shall survive the expiration or earlier termination of the Term.
Appears in 1 contract
Allocation of Assignment Profit and Subleasing Profit. (a) If Landlord’s consent to any assignment of this Lease or to any sublease shall be required hereunder and shall have been given, Tenant shall, in consideration therefor, pay to Landlord, as Additional Rent:
(i) In the case of any such assignment, an amount equal to 50% of the amount (which amount is herein called the “Assignment Profit”) by which (x) all sums and other consideration actually paid to Tenant and any of its Affiliates by or on behalf of the assignee for or by reason of such assignment (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property, and, if such consideration is paid in installments, any interest paid on such installments) exceeds (y) the aggregate of (1) reasonable legal and advertising fees and expenses, transfer taxes taxes, sales and gains taxes, and customary brokerage commissions paid by Tenant in connection with such assignment and sums payable to Landlord pursuant to Section 10.09(a)(xiii) of this Leaseassignment, (2) net payments for any leasehold improvements made for the assignee by Tenant and construction costs related thereto (or allowances in lieu thereof paid by Tenant) pursuant to the terms of such assignment assignment, and any other out-of-pocket cash concessions made by Tenant pursuant to the terms of such assignment, assignment (3) the unamortized cost (except for any so-called free rent in excess of the Work Allowance six (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)6) of the Initial Tenant Work and any other Alterations in the Premises (unless demolished by the assignee within 9 months after the effective date of such assignmentmonths’ Base Rent), based on the amortization of such cost on a straight-line basis from the Rent Commencement Date over the Initial Term of this Lease and (in the case of the Initial Tenant Work) or from the date placed in service over the balance of the initial or other term of this Lease during which made (in the case of other Alterations), (43) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property to the assignee, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, and (5) the Base Rent and Additional Rent paid pursuant to Article 4 of the Lease commencing on the date Tenant shall have vacated the entire Premises and ending on the earlier of (x) the 90th day thereafter and (y) the day immediately preceding the effective date of the assignment. The amounts payable to Landlord under this clause (i) shall be due and payable within 10 ten (10) days after Tenant’s or any of its Affiliates’ receipt of payment from or on behalf of the assignee (including any amounts received as damages or other sums from such assignee on account of such assignee’s default in connection with said assignment, net of Tenant’s reasonable and actual out-of-pocket costs of collection thereof).
(ii) In the case of any such sublease, any Gross Sublease Profit for any month during the term an amount equal to 50% of the sublease shall be applied as follows: first, retained by Tenant until it has recovered any Gross Sublease Loss from all earlier months of amount (which amount is herein called the term of such sublease, second, retained by Tenant until it has recovered its Sublease Costs, and third, 50% retained by Tenant (“Tenant’s Sublease Subleasing Profit”) and 50% paid ), calculated on a monthly basis, by Tenant to Landlord. As used herein the term “Gross Sublease Profit” and “Gross Sublease Loss” shall mean, for any month for any sublease, the excess or deficiency, as the case may be, between which (x) any rents, additional charges or other consideration actually paid to Tenant or and any of its Affiliates under or by reason of the sublease (and any related instruments) by or on behalf of the subtenant (including sums paid for the sale or rental of Leasehold Improvements, fixtures, equipment, furniture, furnishings or other personal property, and, if such consideration is paid in installments, any interest paid on such installments) and any sums received by Tenant or and any of its Affiliates from or on behalf of the subtenant on account of profits received by such subtenant from an underletting) and ), shall exceed (y) the aggregate of (1) the Rent and all other sums to be paid by Tenant under this Lease for such month hereunder in respect of the term of the sublease and of the space covered by demised under the sublease (at the rate per Rentable Square Foot payable by Tenant hereunder), (2) in the case of a sale of Tenant’s equipment, furniture, furnishings or other personal property, the then-unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns, (3) in the case of the rental of Tenant’s equipmentreasonable legal and advertising fees and expenses, furnituretransfer taxes, furnishing or other personal propertysales and gains taxes, the amortization or depreciation thereof during such month determined on the basis of Tenant’s federal income tax return, (4) the amortization or depreciation during such month of all costs (hard and soft) incurred customary brokerage commissions paid by Tenant (and not reimbursed by the Work Allowance (assuming the Work Allowance to have been applied evenly on a per Rentable Square Foot basis over the entire Initial Premises)) for the Initial Tenant Work or other Alterations in the space covered by the sublease (excluding Alterations made in connection with such sublease), determined by amortizing or depreciating such costs on a straight-line basis over the Initial Term of this Lease, commencing on the Rent Commencement Date (in the case of the costs of the Initial Tenant Work) or the in-service date (for other Alterations), unless Tenant or the subtenant demolishes such Initial Tenant Work or Alterations within 9 months after the effective date of such subleasesubletting, and (54) net payments for any leasehold improvements made for the Base Rent and Additional Rent under Article 4 subtenant by Tenant (or net allowances in lieu thereof paid by Tenant) pursuant to the terms of the sublease and any other concessions made by Tenant pursuant to the terms of such sublease (except for any so-called free rent in excess of six (6) months’ base rent under the sublease). The amounts payable to Landlord under this clause (ii) in respect of the space covered Subleasing Profit for a sublease shall be paid to Landlord as and when paid by the subtenant to Tenant. If, however, the sublease is terminated as a result of a default thereunder by the subtenant, Tenant’s obligation to pay further sums to Landlord shall terminate, except with regard to any damages or other sums thereafter received by Tenant from such subtenant (net of Tenant’s reasonable and actual out-of-pocket costs of collection thereof) to the extent attributable to any rents or other amounts included in the Subleasing Profit calculation, of which Tenant shall pay to Landlord 50% on account of the Subleasing Profit.
(b) Together with any Transfer Notice given to Landlord pursuant to Section 10.09(a), Tenant shall furnish Landlord with such information and documents relating to the estimated calculation of Assignment Profit and Subleasing Profit as shall be reasonably appropriate to enable Landlord to verify the same, and Tenant shall promptly furnish Landlord with such additional information or documents related thereto as Landlord may reasonably request. Any dispute arising under or in connection with any provision of this Section 10.12 shall be determined by arbitration pursuant to Article 21. In the event the arbitration determines that the monthly amount owed by Tenant to Landlord under this Section 10.12 exceeds the monthly amount claimed to be so owed by Tenant, then Tenant shall pay Landlord any such deficiency within ten (10) Business Days after such determination has been obtained (or after the parties shall otherwise have reached agreement), and if Tenant shall fail to pay such deficiency within such ten (10) Business Day period after such determination or agreement, then the outstanding amount thereof shall be immediately due and payable to Landlord together with interest thereon at the rate per RentableDefault Rate from the date such outstanding amount was originally owed to the date actually paid. The obligations of Tenant and the remedies of Landlord under this Section 10.12 shall survive the expiration or earlier termination of the Term.
Appears in 1 contract
Samples: Lease (KCG Holdings, Inc.)
