Amending. ARTICLE 11: Notwithstanding the provisions of Article 11, and in modification and amplification thereof: A. If Tenant's interest in this lease is assigned, whether or not in violation of the Provisions of this lease, Landlord may collect rent from the assignee; if the demised premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this lease, Landlord, after default by Tenant under this lease and expiration of Tenant's time, if any, to cure such default, may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the net amount collected to the rents reserved in this lease, but neither any such assignment, subletting, occupancy, nor use, nor any such collection or application shall be deemed a waiver of any terms, covenant or condition of this lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as a tenant. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior written consent of Landlord to any further assignment, subletting, occupancy or use. The listing of any name other than Tenant's on any door of the demised premises, or on any directory, or on any elevator in the building, or otherwise, shall not operate to vest in the party so named, any right or interest in this lease or in the demised premises, or be deemed to constitute, or serve as a substitute for, any prior written 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. Tenant agrees to pay to Landlord any reasonable counsel fees incurred by Landlord in connection with any proposed assignment of Tenant's interest in this lease or any proposed subletting of the demised premises or any part thereof. Neither any assignment of Tenant's B. If Tenant shall desire to assign this lease or to sublet the demised premises, then Tenant shall submit to Landlord a written notice ("Recapture Notice") specifying (i) in the case of a proposed assignment, the effective date thereof; and (ii) in the case of a proposed subletting, the commencement date and term thereof and the space to be sublet by Tenant. Landlord shall then have the following options, to be exercised by notice ("Exercise Notice") given to Tenant within ten (10) business days after receipt of Tenant's Recapture Notice: 1. Landlord may require Tenant to surrender the demised premises to Landlord and to accept a termination of this lease as of a date (the "Termination Date") to be designated by Landlord in the Exercise Notice, which date shall be the day immediately preceding the effective date of the proposed assignment or the commencement date of the proposed subletting, whichever is applicable, but not less than sixty (60) days following the date of Landlord's Exercise Notice; or 2. Landlord may require Tenant to assign this lease to Landlord without merger of Landlord's estates effective as of the day preceding the proposed assignment or sublease, whereupon Tenant shall be released from all liability and obligation first accruing under this lease from and after such effective date. If Landlord shall elect to require Tenant to surrender the demised premises and accept a termination of this lease, then this lease shall expire on the Termination Date as if that date had been originally fixed as the Expiration Date. Regardless of which option Landlord exercises under this Paragraph B, whether to terminate this lease or to take an assignment thereof, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the demised premises to Tenant's prospective assignee or subtenant, if any. C. If Landlord shall not exercise either of its options under Paragraph B above within the time period therein provided, and Tenant shall thereafter procure a proposed subtenant or assignee and shall desire to enter into a proposed sublease or assignment as specified in Tenant Recapture Notice, then Tenant shall submit to Landlord a written request for Landlord's consent to such assignment or subletting ("Tenant's Request"), which request shall contain or be accompanied by the following information; (i) the name and address of the proposed assignee or subtenant; (ii) the material terms and conditions of the proposed assignment or subletting; (iii) the nature and character of the business of the proposed assignee or subtenant and its proposed use of the demised premises; and (iv) banking, financial and other credit information with respect to the proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility of the proposed assignee or subtenant. If Tenant shall have submitted Tenant's Request to Landlord within four (4) months after the date of Landlord's receipt of the Recapture Notice to which same relates, then Landlord shall not unreasonably withhold consent to such proposed assignment or subletting of the entire demised premises, provided that Tenant is not then in default under this lease beyond any applicable notice and grace period, and further provided that the following further conditions shall be fulfilled: 1. The proposed subtenant or assignee shall not be a school of any kind, or an employment or placement agency or governmental or quasi governmental agency, or a real estate brokerage office or medical office or executive recruitment office; 2. The subletting or assignment shall be to a tenant whose occupancy will be in keeping with the dignity and character of the then use and occupancy of the building; 3. No space shall be advertised or openly promoted to the general public; 4. The proposed sublessee or assignee shall not be a tenant, subtenant, occupant or assignee of any premises in the building; or a party who negotiated with Landlord or 5. Except in connection with an assignment of this lease or subletting made pursuant to Paragraph B above, Tenant shall reimburse Landlord, within ten (10) days after demand accompanied by invoices therefor, for any costs that may be incurred in connection with any assignment or sublease, including, without limitation, the reasonable costs of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable out-of-pocket legal costs incurred in connection with the granting of any requested consent; 6. In case of a subletting, it shall be expressly subject to all of the obligations of Tenant under this lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance; and 7. Tenant shall deliver to Landlord, at least ten (10) days prior to the effective date of such assignment or sublease, a fully-executed counterpart thereof; and (i) if the terms of the executed assignment or sublease shall materially vary in any respect from those set forth in Tenant's Request or (ii) if such assignment or sublease shall not be executed and delivered to Landlord within six (6) months following the date of Tenant's Request, then Tenant shall again comply with all of the provisions of Paragraphs B and C hereof. * * * * If Landlord shall decline to give its consent to any proposed assignment or subletting pursuant to this Paragraph C, Landlord shall furnish Tenant with an explanation, in reasonable detail, of the basis for such denial. * * * * D. 1. Tenant may, without Landlord's prior written consent, but upon not less than fifteen (15) days' prior written notice to Landlord, permit any corporations or other business entities which control, are controlled by, or are under common control with Tenant (herein referred to as a "related corporation") to sublet all or part of the demised premises for any of the purposes permitted to Tenant, subject however to compliance with Tenant obligations under this lease provided that (i) Tenant shall not be in default in the performance of any of its obligations under this lease, (ii) prior to such subletting Tenant furnishes Landlord with the name of any such related corporation, together with a certification of Tenant, and such other proof as Landlord may reasonably request, that such subtenant is a related corporation of Tenant and continues to remain such during the term hereof, and (iii) in the reasonable judgment of Landlord the proposed subtenant is of a character such as is in keeping with the standards of Landlord for the building. In connection with the information to be provided to Landlord pursuant to this Paragraph D.1, Tenant shall furnish Landlord, upon request from time to time, with reasonable evidence that such subtenant remains a related corporation of Tenant. Such subletting shall not be deemed to vest in any such related corporation any right or interest in this lease or the demised premises nor shall it relieve, release, impair or discharge any of Tenant's obligations hereunder. For the purposes hereof, "control" shall be deemed to mean ownership of not less than fifty (50%) percent of all of the voting stock of such corporation or not less than fifty (50%) percent of all of the legal and equitable interest in any other business entities.
Appears in 1 contract
Samples: Lease Agreement (Martha Stewart Living Omnimedia Inc)
Amending. ARTICLE 11: Notwithstanding the provisions of Article 11, and in modification and amplification thereof:
A. If Tenant's interest in this lease is assigned, whether or not in violation of the Provisions provisions of this lease, Landlord may collect rent from the assignee; if . If the demised premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this lease, Landlord, after default by Tenant under this lease and expiration of Tenant's time, if any, to cure such default, may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the net amount collected to the rents reserved in this lease, but neither any such assignment, subletting, occupancy, nor use, nor any such collection or application shall be deemed a waiver of any termsterm, covenant or condition of this lease or the acceptance by Landlord of such assignee, subtenant, subtenant occupant or user as a tenant. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior written consent of Landlord to any further assignment, subletting, occupancy or use. The listing of any name other than Tenant's on any door of the demised premises, or on any directory, other than the names of Tenant's business entity and Tenant's associates/employees or on any elevator in the building, or otherwise, shall not operate to vest in the party so named, any right or interest in this lease or in the demised premises, or be deemed to constitute, or serve as a substitute for, any prior written 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. Tenant agrees to pay to Landlord any reasonable counsel fees incurred by Landlord in connection with any proposed assignment of Tenant's interest in this lease or any proposed subletting of the demised premises or any part thereof. Neither any assignment of Tenant's's interest in this lease nor any subletting, occupancy or use of the demised premises or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant as provided in this Paragraph A, nor any application of any such rent as aforementioned as provided in this Paragraph A, shall in any circumstances relieve Tenant of Tenant's obligation fully to observe and perform the terms, covenants and conditions of this lease on Tenant's part to be observed and performed.
B. If Tenant shall desire to assign this lease or to sublet the demised premises, then Tenant shall submit to Landlord a written notice ("Recapture Notice") specifying (i) in the case of a proposed assignment, the effective date thereof; and (ii) in the case of a proposed subletting, the commencement date and term thereof and the space to be sublet by Tenant. Landlord shall then have the following options, to be exercised by notice ("Exercise Notice") given to Tenant within ten (10) business days after receipt of Tenant's Recapture Notice:
1. Landlord may require Tenant to surrender the demised premises to Landlord and to accept a termination of this lease as of a date (the "Termination Date") to be designated by Landlord in the Exercise Notice, which date shall be the day immediately preceding the effective date of the proposed assignment or the commencement date of the proposed subletting, whichever is applicable, but not less than sixty (60) days following the date of Landlord's Exercise Notice; or
2. Landlord may require Tenant to assign this lease to Landlord without merger of Landlord's estates effective as of the day preceding the proposed assignment or sublease, whereupon Tenant shall be released from all liability and obligation first accruing under this lease from and after such effective date. If Landlord shall elect to require Tenant to surrender the demised premises and accept a termination of this lease, then this lease shall expire on the Termination Date as if that date had been originally fixed as the Expiration Date. Regardless of which option Landlord exercises under this Paragraph B, whether to terminate this lease or to take an assignment thereof, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the demised premises to Tenant's prospective assignee or subtenant, if any.
C. If Landlord shall not exercise either of its options under Paragraph B above within the time period therein provided, and Tenant shall thereafter procure a proposed subtenant or assignee and shall desire to enter into a proposed sublease or assignment as specified in Tenant Recapture Notice, then Tenant shall submit to Landlord a written request for Landlord's consent to such assignment or subletting ("Tenant's Request")subletting, which request shall contain or be accompanied by the following information; information (i) the name and address of the proposed assignee or subtenant; (ii) the material terms and conditions of the proposed assignment or subletting including, without limitation, all consideration of every nature whatsoever to be paid to Tenant (including, without limitation, consideration for the sale or rental of Tenant's fixture, leasehold improvements, equipment, furniture or other personal property) in respect of such assignment or subletting; (iii) the nature and character of the business of the proposed assignee or subtenant and its proposed use of the demised premises; and (iv) banking, financial and other credit information with respect to the proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility of the proposed assignee or subtenant. If Landlord shall then have the following options, to be exercised by notice ("Exercise Notice") given to Tenant shall have submitted within thirty days after receipt of Tenant's Request request for consent:
i) Landlord may require Tenant to surrender the demised premises to Landlord within four (4) months after and to accept a termination of this lease as of the date that Tenant's proposed transaction was to occur (the "Termination Date"). Landlord shall only have the right to recapture the entire space in the event of an assignment or sublet of all or substantially all of the space.
ii) Landlord may require Tenant to assign this lease to Landlord without merger of Landlord's receipt estates effective as of the Recapture Notice day preceding the proposed assignment or sublease. If Landlord shall elect to require Tenant to surrender the demised premises and accept a termination of this lease, then this lease shall expire on the Termination Date as if that date had been originally fixed as the Expiration Date. If option (b) is elected, then Tenant shall be released from all of its obligations under the lease. Regardless of which same relatesoption Landlord exercises under this Paragraph B, whether to terminate this lease or to take an assignment thereof, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the demised premises to Tenant's prospective assignee or subtenant.
C. If Landlord shall not exercise either of its options under Paragraph B above within the time period therein provided, then Landlord shall not unreasonably withhold consent to such the proposed assignment or subletting of the entire demised premisessubletting, provided that Tenant is not then in default under this lease beyond any applicable notice and grace period, and further provided that the following further conditions shall be fulfilled:
1. i) The proposed subtenant or assignee shall not be a school of any kind, or an employment or placement agency or governmental or quasi quasi-governmental agency, or a real estate brokerage office or medical office or executive recruitment office;
2. ii) The subletting or assignment shall be to a tenant whose occupancy will be in keeping with the dignity and character of the then use and occupancy of the building and whose financial standing and occupancy will not be more objectionable or more hazardous than that of Tenant herein or impose any additional burden upon Landlord in the operation of the building;
3. No iii) The proposed sublessee or assignee shall not be at a lower rental rate than that being charged by Landlord at the time for similar space shall be advertised or openly promoted to in the general publicbuilding;
4. iv) The proposed sublessee or assignee shall not be a tenant, subtenant, occupant subtenant or assignee of any premises in the building; or a party who negotiated with Landlord or
5. Except in connection with an assignment of this lease or subletting made pursuant to Paragraph B above, Tenant nor shall reimburse Landlord, within ten (10) days after demand accompanied by invoices therefor, for any costs that may be incurred in connection with any assignment or sublease, including, without limitation, the reasonable costs of making investigations as to the acceptability of the proposed sublessee or assignee be a person or subtenant, and reasonable out-of-pocket legal costs incurred entity with whom Landlord is then negotiating to lease space in connection with the granting of any requested consent;building.
6. v) In case of a subletting, it shall be expressly subject to all of the obligations of Tenant under this lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance; and.
7vi) The demised premises shall not, without Landlord's prior written consent, have been listed or otherwise publicly advertised for assignment or subletting at a rental rate less than the lower of the rate of fixed rent then payable hereunder for such space or the then prevailing rental rate for other space in the building. However, this shall not be deemed to prohibit Tenant from negotiating or consummating a sublease at a lower rental rate, if and only if, Tenant shall deliver first have offered to Landlord, at least ten sublet the space involved to Landlord for the same rents and term by notice given with or after Tenant's request for consent to the subletting or assignment. Landlord may accept such offer within thirty (1030) days prior to the effective date from receipt of such request for consent or twenty (20) days after receipt of the offer, whichever is later. If Landlord does not accept such offer, Tenant's assignment and subletting rights shall nevertheless be subject to all the terms and conditions of this Article.
vii) The character of the business to be conducted or sublease, a fully-executed counterpart thereof; and the proposed use of the demised premises by the proposed sublessee or assignee shall not (i) if be likely to increase Landlord's operating expenses beyond that which would be incurred in accordance with the terms standards of use of other tenancies in the building; (ii) increase the burden on existing building services including, without limitation, cleaning and elevator service over the burden prior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions herein relating to the use or occupancy of the executed demised premises.
D. Anything herein contained to the contrary notwithstanding, but without releasing Tenant from its obligations for full performance hereunder, Tenant shall have the right, without the consent of Landlord, to assign or sublet all or any part of the demised premises to one or more controlled or subsidiary companies, or to a parent company (existing or future), and Tenant shall have the right to permit the demised premises or any part thereof to be used by any controlled subsidiary or affiliated and/or parent companies, provided that a duplicate original of the assignment or sublease shall materially vary in any respect from those set forth in Tenant's Request or be delivered to Landlord within seven (ii7) if days after execution, and provided that such assignment or sublease shall permit only such use and occupancy as is permitted under this lease. Further, Tenant may assign this lease in its entirety without the consent of Landlord to any successor corporation (by consolidation or merger or sale of substantially all of its assets) provided the assets and consolidated net worth of such successor corporation and its consolidated subsidiaries, determined in accordance with generally accepted accounting principles on a pro forma basis from the then most recent audited (by independent certified public accountants) balance sheets of all corporations which shall have been merged or consolidated with or into such successor corporation, shall not be executed materially less than the assets and consolidated net worth of Tenant and its consolidated subsidiaries as shown by Tenant's most recent audited (by independent certified public accountants) balance sheet, provided that Tenant shall have delivered to Landlord within six (6) months following an agreement on the date part of such successor corporation whereby such successor corporation agrees to assume, and does assume, all of the obligations and duties on the part of the Tenant to be performed hereunder.
E. No permitted or consented to assignment or subletting shall be effective or valid for any purpose whatsoever unless and until a counterpart of the assignment or a counterpart or reproduced copy of the sublease shall have been first delivered to the Landlord and, in the event of an assignment, the Tenant shall deliver to Landlord a written agreement executed and acknowledged by the Tenant and such assignee in recordable form wherein such assignee shall assume jointly and severally with Tenant the due performance of this lease on Tenant's part to be performed to the full end of the term of this lease notwithstanding any other or further assignment.
F. Any transfer by operation of law or otherwise, of Tenant's Requestinterest in this lease or of a 50% or greater interest in Tenant (whether stock, then Tenant partnership interest or otherwise) shall again comply with all be deemed an assignment of the provisions this lease for purposes of Paragraphs B and C hereof. * * * * this Article.
G. If Landlord shall decline to give its consent to any proposed assignment or subletting pursuant to this Paragraph C, sublease or if Landlord shall furnish exercise its option under this Article, Tenant with an explanationshall indemnify, in defend and hold harmless Landlord against and from any and all loss, liability, damages, costs and expenses (including reasonable detail, of legal fees) resulting from any claims that may be made against Landlord by the basis for such denial. * * * *
D. 1. Tenant may, without Landlord's prior written consent, but upon not less than fifteen (15) days' prior written notice to Landlord, permit proposed assignee or sublessee or by any corporations brokers or other business entities which control, are controlled by, persons claiming a commission or are under common control with Tenant (herein referred to as a "related corporation") to sublet all or part of the demised premises for any of the purposes permitted to Tenant, subject however to compliance with Tenant obligations under this lease provided that (i) Tenant shall not be similar compensation in default in the performance of any of its obligations under this lease, (ii) prior to such subletting Tenant furnishes Landlord with the name of any such related corporation, together with a certification of Tenant, and such other proof as Landlord may reasonably request, that such subtenant is a related corporation of Tenant and continues to remain such during the term hereof, and (iii) in the reasonable judgment of Landlord the proposed subtenant is of a character such as is in keeping with the standards of Landlord for the building. In connection with the information to be provided to Landlord pursuant to this Paragraph D.1, Tenant shall furnish Landlord, upon request from time to time, with reasonable evidence that such subtenant remains a related corporation of Tenant. Such subletting shall not be deemed to vest in any such related corporation any right proposed assignment or interest in this lease or the demised premises nor shall it relieve, release, impair or discharge any of Tenant's obligations hereunder. For the purposes hereof, "control" shall be deemed to mean ownership of not less than fifty (50%) percent of all of the voting stock of such corporation or not less than fifty (50%) percent of all of the legal and equitable interest in any other business entitiessublease.
Appears in 1 contract
Samples: Office Lease (Arista Investors Corp)
Amending. ARTICLE 11: Notwithstanding the provisions of Article 11, and in modification and amplification thereof:
A. If Tenant's interest in this lease is assigned, whether or not in violation of the Provisions provisions of this lease, Landlord may collect rent from the assignee; if the demised premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this lease, . Landlord, after default by Tenant under this lease and expiration of Tenant's time, if any, to cure such default, may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the net amount collected to the rents reserved in this lease, but neither any such assignment, subletting, occupancy, nor use, nor any such collection or application shall be deemed a waiver of any terms, covenant or condition of this lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as a tenant. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior written consent of Landlord to any further assignment, subletting, occupancy or use. The listing of any name other than Tenant's on any door of the demised premises, or on any directory, or on any elevator in the building, or otherwise, shall not operate to vest in the party so named, any right or interest in this lease or in the demised premises, or be deemed to constitute, or serve as a substitute for, any prior written 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. Tenant agrees to pay to Landlord any reasonable out-of-pocket counsel fees incurred by Landlord in connection with any proposed assignment of Tenant's interest in this lease or any proposed subletting of the demised premises or any part thereof. Neither any assignment of Tenant's's interest in this lease nor any subletting, occupancy or use of the demised premises or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant as provided in this Paragraph A, nor any application of any such rent as aforementioned as provided in this Paragraph A, shall in any circumstances relieve Tenant of Tenant's obligations fully to observe and perform the terms, covenants and conditions of this lease on Tenant's part to be observed and performed.
B. If Tenant shall desire to assign this lease or to sublet the demised premises, then Tenant shall submit to Landlord a written notice ("Recapture Notice") specifying request for Landlord's consent to such assignment or subletting, which request shall contain or be accompanied by the following information; (i) in the case name and address of the proposed assignee or subtenant; (ii) a duplicate original or photocopy of the executed assignment agreement or sublease; (iii) the nature and character of the business of the proposed assignment, assignee or subtenant and its proposed use of the effective date thereofdemised premises; and (iiiv) in banking, financial and other credit information with respect to the case proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility of a the proposed subletting, the commencement date and term thereof and the space to be sublet by Tenantassignee or subtenant. Landlord shall then have the following optionsoptions with respect to an assignment of this lease or a subletting of a portion of the demised premises, which when aggregated with any other portion theretofore sublet shall equal or exceed fifty (50%) percent of the square foot area of the demised premises, to be exercised by notice ("Exercise Notice") given to Tenant within ten thirty (1030) business days after receipt of Tenant's Recapture Noticerequest for consent:
1. Landlord may require Tenant to surrender the demised premises to Landlord and to accept a termination of this lease as of a date (the "Termination Date") to be designated by Landlord in the Exercise Notice, which date shall not be the day immediately preceding the effective date of the proposed assignment or the commencement date of the proposed subletting, whichever is applicable, but not less than thirty (30) days nor more than sixty (60) days following the date of Landlord's Exercise Notice; or
2. Landlord may require Tenant to assign this lease to Landlord without merger of Landlord's estates effective as of the day preceding the proposed assignment or sublease, whereupon Tenant shall be released from all liability and obligation first accruing under this lease from and after such effective date. If Landlord shall elect to require Tenant to surrender the demised premises and accept a termination of this lease, then this lease shall expire on the Termination Date as if that date had been originally fixed as the Expiration Date. Regardless of which option Landlord exercises under this Paragraph B, whether to terminate this lease or to take an assignment thereof, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the demised premises to Tenant's prospective assignee or subtenant, if any.
C. If Landlord shall not exercise either of its options under Paragraph B above within the time period therein provided, and Tenant or if Landlord shall thereafter procure a proposed subtenant or assignee and shall desire to enter into a proposed sublease or assignment as specified in Tenant Recapture Notice, then Tenant shall submit to Landlord a written request for Landlord's consent not be entitled to such assignment or subletting ("Tenant's Request"), which request shall contain or be accompanied by the following information; (i) the name and address of the proposed assignee or subtenant; (ii) the material terms and conditions of the proposed assignment or subletting; (iii) the nature and character of the business of the proposed assignee or subtenant and its proposed use of the demised premises; and (iv) banking, financial and other credit information with respect to the proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility of the proposed assignee or subtenant. If Tenant shall have submitted Tenant's Request to Landlord within four (4) months after the date of Landlord's receipt of the Recapture Notice to which same relatesoptions, then Landlord shall not unreasonably withhold consent to such the proposed assignment or subletting of the entire demised premises, provided that Tenant is not then in default under this lease beyond any applicable notice and grace period, and further provided that the following further conditions shall be fulfilled:
1. The proposed subtenant or assignee shall not be a school of any kind, or an employment or placement agency or governmental or quasi governmental agency, or a real estate brokerage office or medical office or executive recruitment office;
2. The subletting or assignment shall be to a tenant whose occupancy will be in keeping with the dignity and character of the then use and occupancy of the building and whose occupancy will not impose any material additional burden upon Landlord in the operation of the building;
3. No space shall be advertised or openly promoted to the general publicpublic at a lower rental rate than that being charged by Landlord at the time for similar space in the building, but Tenant may conclude a sublease at a lower rental rate;
4. The Provided comparable space is then available elsewhere in the building prior to the effective date of the proposed assignment or subletting, the proposed sublessee or assignee shall not be a tenant, subtenant, occupant or assignee of any premises in the building; or a party who negotiated dealt with Landlord oror Landlord's agent (directly or through a broker) with respect to space in the building during the six (6) months immediately preceding Tenant's request for Landlord's consent;
5. Except in connection with an assignment of this lease or subletting made pursuant to Paragraph B above, Tenant shall reimburse Landlord, within ten (10) days after pay on demand accompanied by invoices therefor, for any reasonable, out-of-pocket costs that may be incurred by Landlord in connection with any assignment or sublease, including, without limitation, the reasonable costs of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable out-of-pocket legal costs incurred in connection with the granting of any requested consent;; and
6. In case of a subletting, it shall be expressly subject to all of the obligations of Tenant under this lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance; and
7. Tenant shall deliver to Landlord, at least ten (10) days prior to the effective date of such assignment or sublease, a fully-executed counterpart thereof; and (i) if the terms of the executed assignment or sublease shall materially vary in any respect from those set forth in Tenant's Request or (ii) if such assignment or sublease shall not be executed and delivered to Landlord within six (6) months following the date of Tenant's Request, then Tenant shall again comply with all of the provisions of Paragraphs B and C hereof. * * * * If Landlord shall decline to give its consent to any proposed assignment or subletting pursuant to this Paragraph C, Landlord shall furnish Tenant with an explanation, in reasonable detail, of the basis for such denial. * * * *.
D. 1. Tenant may, without Landlord's prior written consent, but upon not less than fifteen (15) days' prior written notice to Landlord, permit any corporations or other business entities which control, are controlled by, or are under common control with Tenant (herein referred to as a "related corporation") to sublet all or part of the demised premises (whether or not the sublet space is separately demised) for any of the purposes permitted to Tenant, subject however to compliance with Tenant obligations under this lease provided that (i) Tenant shall not be in default in the performance of any of its obligations under this lease, (ii) prior to such subletting Tenant furnishes Landlord with the name of any such related corporation, together with a certification of Tenant, and such other proof as Landlord may reasonably request, that such subtenant is a related corporation of Tenant and continues to remain such during the term hereof, and (iii) in the reasonable judgment of Landlord the proposed subtenant is of a character such as is in keeping with the standards of Landlord for the building. In connection with the information to be provided to Landlord pursuant to this Paragraph D.1, Tenant shall furnish Landlord, upon request from time to time, with reasonable evidence that such subtenant remains a related corporation of Tenant. Such subletting shall not be deemed to vest in any such related corporation any right or interest in this lease or the demised premises nor shall it relieve, release, impair or discharge any of Tenant's obligations hereunder. For the purposes hereof, "control" shall be deemed to mean ownership of not less than fifty (50%) percent of all of the voting stock of such corporation or not less than fifty (50%) percent of all of the legal and equitable interest in any other business entities.other
Appears in 1 contract
Amending. ARTICLE 11: -------------------- Notwithstanding the provisions of Article 11, and in modification and amplification thereof:
A. If Tenant's interest in this lease is assigned, whether or not in violation of the Provisions of this lease, Landlord may collect rent from the assignee; if the demised premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this lease, Landlord, after default by Tenant under this lease and expiration of Tenant's time, if any, to cure such default, may collect rent from the subtenant, user or occupant. In either case, Landlord shall apply the net amount collected to the rents reserved in this lease, but neither any such assignment, subletting, occupancy, nor use, nor any such collection or application shall be deemed a waiver of any terms, covenant or condition of this lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as a tenant. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior written consent of Landlord to any further assignment, subletting, occupancy or use. The listing of any name other than Tenant's on any door of the demised premises, or on any directory, or on any elevator in the building, or otherwise, shall not operate to vest in the party so named, any right or interest in this lease or in the demised premises, or be deemed to constitute, or serve as a substitute for, any prior written 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. Tenant agrees to pay to Landlord any reasonable counsel fees incurred by Landlord in connection with any proposed assignment of Tenant's interest in this lease or any proposed subletting of the demised premises or any part thereof. Neither any assignment of Tenant's
B. If Tenant shall desire to assign this lease Lease or to sublet the demised premises, then Tenant shall submit to Landlord all or a written notice ("Recapture Notice") specifying (i) in the case of a proposed assignment, the effective date thereof; and (ii) in the case of a proposed subletting, the commencement date and term thereof and the space to be sublet by Tenant. Landlord shall then have the following options, to be exercised by notice ("Exercise Notice") given to Tenant within ten (10) business days after receipt of Tenant's Recapture Notice:
1. Landlord may require Tenant to surrender the demised premises to Landlord and to accept a termination of this lease as of a date (the "Termination Date") to be designated by Landlord in the Exercise Notice, which date shall be the day immediately preceding the effective date portion of the proposed assignment or the commencement date of the proposed sublettingDemised Premises, whichever is applicable, but not less than sixty (60) days following the date of Landlord's Exercise Notice; or
2. Landlord may require Tenant to assign this lease to Landlord without merger of Landlord's estates effective as of the day preceding the proposed assignment or sublease, whereupon Tenant shall be released from all liability and obligation first accruing under this lease from and after such effective date. If Landlord shall elect to require Tenant to surrender the demised premises and accept a termination of this lease, then this lease shall expire on the Termination Date as if that date had been originally fixed as the Expiration Date. Regardless of which option Landlord exercises under this Paragraph B, whether to terminate this lease or to take an assignment thereof, Landlord shall be free to, and shall have no liability to Tenant if Landlord shall, lease the demised premises to Tenant's prospective assignee or subtenant, if any.
C. If Landlord shall not exercise either of its options under Paragraph B above within the time period therein provided, and Tenant shall thereafter procure a proposed subtenant or assignee and shall desire to enter into a proposed sublease or assignment as specified in Tenant Recapture Notice, then Tenant shall submit to Landlord a written request for Landlord's consent to such assignment or subletting ("Tenant's Request")subletting, which request shall contain or be accompanied by the following information; : (i) the name and address of the proposed assignee or subtenant; (ii) the material terms and conditions a duplicate original or photocopy of the proposed assignment agreement or sublettingsublease or a true and correct photocopy of the offer from the proposed assignee or subtenant signed by such proposed assignee or subtenant; (iii) the nature and character of the business of the proposed assignee or subtenant and its proposed use of the demised premisesDemised Premises; and (iv) banking, financial and other credit information with respect to the proposed assignee or subtenant reasonably sufficient to enable Landlord to determine the financial responsibility of the proposed assignee or subtenant. If Landlord shall then have the option to be exercised by written notice given to Tenant shall have submitted within fifteen (15) days after receipt of Tenant's Request request for consent to require a surrender of the Demised Premises if Tenant has requested consent to an assignment of this lease or a subletting of all or substantially all of the Demised Premises, or to require a surrender of a portion of the Demised Premises which Tenant proposes to sublet, upon the terms and conditions hereinafter provided.
B. If Landlord shall exercise its option to require a surrender of the Demised Premises or portion thereof as provided above, then upon the proposed commencement date of the subletting specified in Tenant's notice to Landlord, the Demised Premises or portion intended to be sublet, as the case may be, shall be surrendered to Landlord within four (4) months after in accordance with the provisions of the Lease pertinent to surrender, and this Lease shall cease and terminate insofar as the Demised Premises or portion thereof, as the case may be, with the same force and effect as though such proposed commencement date were the Expiration Date. If only a portion of the Demised Promises is involved, the terms and conditions of the Lease shall remain in full force and effect, except that the Fixed Rent and additional rent shall be proportionately reduced based upon the number of square feet of the portion of the Demised Premise surrendered. In addition, in the event that less than all of the Demised Premises is surrendered:
1. Landlord shall cause to be constructed, at Landlord's receipt sole cost and expense, such alterations and connections as may be required in order to physically separate such surrendered the portion of the Recapture Notice Demised Premises from the balance of the Demised Premises; and
2. After the proposed commencement date specified above, Landlord shall, subject to which same relatesArticle 13 herein, have free access to enter to the Demised Premises in order to complete the construction referred to in Subparagraph B1 above.
C. If Landlord does not exercise its option specified above, then Landlord Landlord's consent to a subletting of all or a portion of the Demised Premises or an assignment of Tenant's interest in this lease shall not be unreasonably withhold consent to such proposed assignment withheld or subletting of the entire demised premises, provided that Tenant is not then in default under this lease beyond any applicable notice and grace period, and delayed on further provided that the following further conditions shall be fulfilledcondition that:
1. The proposed subtenant or assignee shall not be a school of any kind, or an employment or placement agency or governmental or quasi governmental agency, or a real estate brokerage office or medical office or executive recruitment office;
2. The subletting or assignment shall be to a tenant whose occupancy will be in keeping with the dignity and character of the then use and occupancy of the buildingBuilding and whose occupancy will not be more objectionable or more hazardous than that of Tenant herein or impose any additional burden upon Landlord in the operation of the Building;
3. No space shall be advertised or openly promoted to the general publicpublic utilizing the name of the Landlord or any principal or partner thereof, or stating or otherwise characterizing a rental rate;
4. The proposed sublessee or assignee shall not be a tenant, subtenant, an occupant or assignee of any premises space in the building; Building or a party who negotiated dealt with Landlord oror Landlord's agent (directly or through a broker) with respect to space in the Building during the six (6) months immediately preceding Tenant's request for Landlord's consent;
5. Except in connection with an assignment of this lease or subletting made pursuant to Paragraph B above, Tenant shall reimburse Landlord, within ten (10) days after Landlord on demand accompanied by invoices therefor, for any reasonable costs that may be incurred in connection with any assignment or sublease, including, without limitation, the reasonable costs of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable out-of-pocket legal costs incurred in connection with the granting of any requested consent, provided such costs do not exceed $2,000.00 per each consent;
6. In case of a subletting, it shall be expressly subject to all of the obligations of Tenant under this lease Lease and the further condition and restriction that the sublease subleased Demised Premises shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance;
7. Tenant, at Tenant's expense, shall provide and permit reasonably appropriate means of ingress to and egress from the space sublet by Tenant; and
78. Tenant is not then in default under the terms, covenants and conditions of this lease on Tenant's part to be observed and performed beyond applicable notice and cure periods.
D. No permitted or consented to assignment or subletting shall be effective or valid for any purpose whatsoever unless and until a counterpart of the assignment or a counterpart or reproduced copy of the sublease shall have been first delivered to the Landlord, and, in the event of an assignment, the Tenant shall deliver to Landlord a written agreement executed and acknowledged by the Tenant and such assignee wherein such assignee shall assume the due performance of this Lease on Tenant's part to be performed for the balance of the term of this Lease notwithstanding any other or further assignment.
E. Any transfer by operation of law or otherwise, of Tenant's interest in this Lease or of a fifty (50%) percent or greater interest in Tenant (whether stock, partnership interest or otherwise) shall be deemed an assignment of this Lease for purposes of this Article except that the transfer of the outstanding capital stock of any corporate tenant shall be deemed not to include any initial public offering of Tenant's stock or the sale of such stock by persons or parties through the "over-the-counter-market" or through any recognized stock exchange, other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended. Notwithstanding the provisions of this Article 42, the following transfers shall not constitute an assignment for purposes hereof and shall be permitted without Landlord's consent, even where effective control of Tenant may shift as a result thereof: (i) the public offering or trading of Tenant's or Tenant's parent's stock on a nationally recognized exchange or on the NASDAQ over-the-counter or "small cap issues" markets, (ii) gifts, bequeaths, inheritance or other devices between and among Tenant's shareholders (or partners, as the case may be) and their families, or (iii) private placements pursuant to which the proceeds are invested directly in Tenant or a related entity of Tenant.
F. Landlord acknowledges and agrees that Tenant may enter into agreements with Tenant's customers and users of voice, video, data, computer, telco, and other communication equipment and systems ("Collocation Agreements") that provide for the physical location of such equipment within the Demised Premises. Such Collocation Agreements shall not be deemed a subletting or assignment under this lease and Landlord shall not be entitled to any fee or additional rental therefore. Landlord further acknowledges that Tenant shall be allowed to interconnect such equipment to Tenant's equipment within the Demised Premises and shall also be allowed to interconnect such equipment with telco services provided by other third party local telephone providers at no additional charge or cost.
G. Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Demised Premises or any part thereof by any person other than Tenant, nor any collection of rent by Landlord from any person other than Tenant as provided in Article 11 hereof, nor any application of any such rent as provided in said Article 11 shall, in any circumstances, relieve Tenant of its obligations fully to observe and perform the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed.
H. Notwithstanding anything to the contrary contained herein, if Landlord shall consent to any assignment or subletting (other than in respect of an assignment or subletting permitted under paragraph I below), then (i) in the case of an assignment, if Tenant shall receive any consideration from its assignee in connection with the assignment of this Lease, Tenant shall pay over to Landlord, as additional rent, a sum equal to fifty (50%) percent of any such consideration (including sums designated by the assignee as paid for the purchase of Tenant's property in the Demised Premises, less the then net unamortized or undepreciated cost of Tenant's property as determined on the basis of the amortization schedule therefore utilized by Tenant in Tenant's federal income tax returns, as shall exceed the brokerage commissions, alterations expenses and attorneys' fees and disbursements (including, without limitation, actual up-front, out-of-pocket payments for improvement allowances or other concessions paid at least ten (10) days or prior to the effective date of such assignment) reasonably incurred by Tenant for such assignment or sublease, a fully-executed counterpart thereof; and (i) if the terms of the executed assignment or sublease shall materially vary in any respect from those set forth in Tenant's Request or (ii) if Tenant shall sublet the Demised Premises or any portion thereof to anyone for rents, additional charges or other consideration which for any period shall exceed the rents payable for the subleased space under this Lease for the same period, Tenant shall pay Landlord, as additional rent, a sum equal to fifty (50%) percent of any such excess less brokerage commissions, and attorneys' fees and disbursements reasonably incurred by Tenant for such subletting (including, without limitation, actual up-front, out-of-pocket payments for improvement allowances or other concessions paid at or prior to the effective date of such sublease) and all sums payable to Landlord pursuant to subdivision (ii) of this Paragraph H shall be paid on the effective date of such assignment or sublease shall not be executed on such later date when, and delivered to Landlord within six (6) months following the date of Tenant's Requestextent, then any such payments are made to Tenant shall again comply with all of by the provisions of Paragraphs B and C hereof. * * * * If Landlord shall decline to give its consent to any proposed assignment subtenant or subletting pursuant to this Paragraph C, Landlord shall furnish Tenant with an explanation, in reasonable detail, of the basis for such denial. * * * *assignee.
D. 1. I. Tenant may, without Landlord's prior written consent, but upon not less than fifteen (15) days' prior written notice to Landlord, permit assign or transfer its entire interest in this Lease and the leasehold estate hereby created or sublet the whole or any corporations or other business entities which control, are controlled by, or are under common control with portion of the Demised premises to a related entity of Tenant (herein referred to as a "related corporation"hereinafter defined) or an entity (1) to sublet which substantially all of Tenant's assets are transferred or part (2) to which all of the demised premises for any capital stock of the purposes permitted to TenantTenant is transferred or into with or with which Tenant is otherwise merged or consolidated; provided, subject however to compliance with Tenant obligations under this lease provided however, that (i) Tenant shall not be in default in the performance of any of its obligations under the terms of this leaseLease beyond applicable notice and cure periods, (ii) prior to such subletting Tenant furnishes Landlord with the name of any such related corporation, together with a certification of Tenant, and such other proof as Landlord may reasonably request, that such subtenant is a related corporation of Tenant and continues to remain such during proposed occupancy shall not increase the term hereof, office cleaning requirements (if any) or impose an unreasonable extra burden upon the building equipment or building services and (iii) in the reasonable judgment of Landlord the proposed subtenant is of a character such as is in keeping with the standards of Landlord for the building. In connection with the information to be provided to Landlord pursuant to this Paragraph D.1, Tenant shall furnish Landlord, upon request from time to time, with reasonable evidence that such subtenant remains a related corporation of Tenant. Such subletting or assignee shall not be deemed entitled, directly or indirectly, to vest in any such diplomatic or sovereign immunity and shall be subject to the service of process in, and the jurisdiction of the courts of, New York State. A "related corporation any right or interest entity", as used in this lease Section shall mean with respect to an entity to which reference is made, an entity which controls, is controlled by or the demised premises nor shall it relieve, release, impair or discharge any of Tenant's obligations hereunderis under common control with such entity. For the purposes hereof, "control" shall be deemed to mean ownership of not less than fifty (50%) percent of all of the voting stock of such corporation or not less than fifty (50%) percent of all of the legal and equitable interest in any other business entitiesentities or the ability to control the business decision of such corporation or entity. Any such subletting shall not be deemed to vest in any such related entity any right or interest in this Lease or the Demised Premises nor shall it relieve, release, impair or discharge any of Tenant's obligations hereunder.
J. Each sublease shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and that in the event of default by Tenant under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor, under such sublease, and such sublessee shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease or, (ii) be subject to any offset not expressly provided in such sublease which theretofore accrued to such sublease to which Landlord has not specifically consented in writing or by any previous prepayment of more than one month's rent.
Appears in 1 contract
Samples: Office Lease (Intira Corp)
