Assignment and Subletting Attornment Tenant Financing
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For more information visit our privacy policy.Assignment and Subletting by Tenant Tenant may not assign its interest in this Lease or sublet the whole or any part of the Premises without the prior consent of Landlord, which consent will not be unreasonably withheld, delayed or conditioned. Tenant shall remain primarily liable and responsible under this Lease in the event of any such assignment or sublease and shall not be released from its obligations hereunder nor shall the guaranty of the Lease by Air Industries Group be terminated or released. Any assignment of this Lease or subletting of the Premises without notification to and consent by Landlord shall not be effective as to Landlord and Landlord shall not be bound thereby. Tenant agrees that it shall not be unreasonable for Landlord to withhold its consent to a proposed sublease or assignment if: (a) The proposed assignee (“Proposed Assignee”) refuses to provide Landlord with financial statements covering a period of at least 12 months ending no earlier than six months and no later than three months prior to the effective date of the proposed assignment; (b) The Proposed Assignee shall not agree in writing to assume all of the obligations of Tenant under this Lease from and after the date of assignment; (c) Tenant or Proposed Assignee shall fail to pay to Landlord a processing fee of One Thousand Five Hundred ($1,500.00) Dollars (increased by 2% each year commencing 1/1/17) in connection with the proposed sublet or assignment of this lease; (d) Tenant shall fail to furnish Landlord with a true and correct copy of the sublease or assignment and assumption not less than thirty (30) days prior to execution for Landlord’s review and approval and a fully executed counterpart of the sublease or assignment and assumption of this Lease, as applicable, within ten (10) days after the date of the execution of same; (e) The Proposed Assignee is not solvent or is generally held in disrepute; (f) Without consent of Landlord, Tenant may assign this Lease to a corporation or other entity which is a direct or indirect subsidiary of Guarantor. (g) Without consent of Landlord Tenant may assign this Lease or the holders of the equity interests of Tenant may sell or assign such interests to a third party which acquires all or substantially all of the business then being conducted by Tenant at the Premises. (h) Without consent of Landlord, Tenant may sell or transfer a minority of its equity interests or otherwise assign or sublease to an affiliate or subsidiary of Tenant or its parent company; up to forty-nine percent (49%) of the Premises, or transfer equity interests in connection with going public. (i) Under no circumstances shall Tenant or Guarantor be released from any liability under this Lease or Guaranty.
Assignment and Subletting Tenant shall not assign or transfer this Lease or hypothecate, mortgage or sublet the Leased Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld. In the event of any assignment, transfer (including transfers by operation of law or otherwise), hypothecation, mortgage or subletting without such written consent, in addition to any other right or remedy Landlord may have under the provisions of this Lease, Landlord shall have the right to terminate this Lease and/or to re-enter and repossess the Leased Premises but Landlord’s rights to damages shall survive and Tenant shall not be released from any of its obligations under this Lease. Consent by Landlord to one or more assignment of this Lease or to one or more subletting of said Leased Premises shall not be deemed to be a waiver of the requirement for consent of Landlord to any future assignment or subletting. Notwithstanding anything contained herein to the contrary, Tenant shall not assign or sublease this Lease without the prior written approval of any Landlord mortgagee to the extent such written consent is required of such mortgagee and any assignment or sublease without the mortgagee’s consent shall be void. Landlord may assign this Lease and a Memorandum of this Lease (but not the Lease itself) may be recorded in the appropriate public records. Notwithstanding the above, Landlord’s prior written consent shall not be required for an assignment of this Lease to a subsidiary, affiliate or parent corporation of Tenant, a corporation into which Tenant merges or consolidates, or to a purchaser of all or substantially all of the assets of Tenant if (1) Tenant gives Landlord prior written notice of the name of any such assignee and, (2) the assignee assumes, in writing, all of Tenant’s obligations under the Lease and, (3) such assignment meets all of the “factors” listed below in this Article. Landlord and Tenant agree that any one of the following factors, or any other reasonable factor, will be reasonable grounds for Landlord in determining whether to consent to Tenant’s request to assign or sublet: (a) Financial strength of the proposed sub-tenant/assignee must be at least equal to that of the existing Tenant at the time of execution of this Lease. (b) Business reputation of the proposed sub-tenant/assignee must be in accordance with generally acceptable commercial standards. (c) Use of the Premises by the proposed sub-tenant/assignee must be substantially similar to the use permitted by this Lease. (d) Use of the Premises by the proposed sub-tenant/assignee will not tend to violate or create any potential violation of any laws, ordinances or regulations; and (e) Use of the Premises by the proposed sub-tenant/assignee will not violate any other agreements affecting the Premises.
Assignment and Subleasing During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer. No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof. Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.
Tenant Estoppel Certificate Please refer to the documents described in Schedule 1 hereto, (the “Lease Documents”) including the “Lease” therein described; all defined terms in this Certificate shall have the same meanings as set forth in the Lease unless otherwise expressly set forth herein. The undersigned Tenant hereby certifies that it is the tenant under the Lease. Tenant hereby further acknowledges that it has been advised that the Lease may be collaterally assigned in connection with a proposed financing secured by the Property and/or may be assigned in connection with a sale of the Property and certifies both to Landlord and to any and all prospective mortgagees and purchasers of the Property, including any trustee on behalf of any holders of notes or other similar instruments, any holders from time to time of such notes or other instruments, and their respective successors and assigns (the “Beneficiaries”) that as of the date hereof:
Assignment/Subletting Except as provided herein, Tenant shall not assign or in any manner transfer this Lease or any estate or interest hereunder and shall not sublease the Premises or any part thereof without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned, or delayed. As part of Tenant’s request for, and as a condition to, Landlord’s consent to such assignment or sublease, Tenant shall provide Landlord with financial statements for the proposed transferee and such other information as Landlord may reasonably request. Tenant shall not be entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its consent to a proposed transfer to a third party and Tenant’s sole remedy shall be an action to enforce any such provision through specific performance or declaratory judgment. Tenant shall reimburse Landlord for its actual reasonable costs and expenses incurred in connection with such assignment or sublease request. Notwithstanding anything in this Lease to the contrary, so long as Tenant is not in default under this Lease beyond applicable notice and cure periods, the consent of the Landlord need not be obtained if the assignment of the Lease is to a: (i) parent, subsidiary or affiliate of Tenant; (ii) company with which Tenant may merge or consolidate; (iii) corporation that acquires all or substantially all of the shares of stock or assets of Tenant; or (iv) to any corporation which is the successor corporation in the event of a corporate reorganization (a “Related Entity”); provided, however, that (i) such Related Entity does not use the Premises for any other use than the use permitted by this Lease, and (ii) with respect to an assignment to a Related Entity described in subsections (ii) and (iii), such Related Entity has a tangible net worth equal to or greater than $10,000,000.00. Landlord agrees that Tenant shall have the right, without Landlord’s consent, to sublease or license a portion of the Premises to a Related Entity described in subsection (i) above, provided that such Related Entity does not use the Premises for any other use than the use permitted by this Lease. Tenant shall give Landlord written notice at least ten (10) days prior to the effective date of the proposed transfer, along with all applicable documentation and other information necessary for Landlord to determine that the requirements of this Section 13 have been satisfied, including if applicable, the qualification of such proposed transferee as an affiliate of Tenant or a Related Entity.
ASSIGNMENT AND SUBLEASE Provided there are no Events of Defaults hereunder or under the Note Agreement, as defined herein and therein, Tenant may assign this Lease or sublease all or any portion of the Demised Premises subject to the terms hereof. Tenant shall not assign this Lease without the exclusive prior written consent of Landlord and any mortgagee. Notwithstanding the foregoing, Tenant may assign this Lease to any person which is a successor to Tenant as permitted by the terms of the Note Agreement. If this Lease is assigned, Lessor may collect Base Rent and Additional Rent directly from such assignee. If any part of the Demised Premises is sublet and any Event of Default exists hereunder, Landlord may collect Base Rent and Additional Rent from such subtenant. Any assignment or sublease shall require the assignee or subtenant to comply with all terms of this Lease except for any sublease term, which shall be at Tenant's discretion (but in no event extend beyond the term of this Lease), and a duplicate original of such sublease or assignment shall be delivered to Landlord at least ten (10) days prior to the commencement of such sublease or assignment. Any assignee shall assume, by instrument in form and content satisfactory to Landlord, the due performance of all of Tenant's obligations under this Lease, including any accrued obligations at the time of the effective date of the assignment, and such assumption agreement shall state that the same is made by the assignee for the express benefit of Landlord as a third party beneficiary thereof. Each sublease permitted hereby shall be subject and subordinate to all of the terms, covenants and conditions of this Lease and to all of the rights of Landlord hereunder; and in the event this Lease shall terminate before the expiration of such sublease, the sublessee thereunder will, at Landlord's option, attorn to Landlord and waive any rights the sublessee may have to terminate the sublease or to surrender possession thereunder, as a result of the termination of this Lease. No sublease shall be permitted hereby unless as a condition to effectiveness thereof, Tenant shall have assigned to Landlord and Landlord shall have effectively assigned to mortgagee such sublease. Tenant agrees to pay on behalf of Landlord any and all costs of Landlord or otherwise occasioned by such assignment or subletting, including without limitation, the cost of any alteration, addition, improvement or other renovation or refurbishment to the Demised Premises made in connection with such assignment or subletting and any cost imposed by any governmental authority in connection with any of the foregoing. No assignment or sublease shall be made unless any guarantor of the Tenant's obligations or any party responsible for Tenant's obligations shall give its written consent to such assignment or sublease and confirm that its obligations shall not be affected by such assignment or sublease, and, provided, further, that if any modification to the Lease is proposed to be made after such assignment or sublease, then, at Landlord's or mortgagee's option, all prior assignors and sublessors, and all such obligated parties, shall be required to confirm in writing their approval of such modification, and that their obligations continue as to the Lease as so modified. No assignment or subletting under this paragraph shall relieve Tenant (or any guarantor of Tenant's obligations under the Lease or any assignee) of its obligations hereunder. Any assignment or subletting of this Lease which is not in compliance with the provisions of this paragraph shall be of no effect and void. Except as permitted hereby, Tenant shall not transfer, sublet, assign or otherwise encumber its interest in the Lease or the Demised Premises. Notwithstanding anything contained in this Lease to the contrary and notwithstanding any consent by Landlord to any sublease of the Demised Premises, or any portion thereof, or to any assignment of this Lease or of Tenant's interest or estate in the Demised Premises, no sublessee shall assign its sublease nor further sublease the Demised Premises, or any portion thereof, and no assignee shall further assign or sublet its interest in this Lease or its interest or estate in the Demised Premises, or any portion thereof, without Landlord's prior written consent in each and every instance which consent may be withheld or delayed as above provided. No such further assignment or subleasing shall relieve Tenant from any of Tenant's obligations in this Lease contained.
Subordination to Mortgages; Estoppel Certificate Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building or the Property, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. Upon request, Tenant, without charge, shall attorn to any successor to Landlord’s interest in this Lease. Landlord and Tenant shall each, within 10 days after receipt of a written request from the other, execute and deliver a commercially reasonable estoppel certificate to those parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser). Without limitation, such estoppel certificate may include a certification as to the status of this Lease, the existence of any defaults and the amount of Rent that is due and payable. Notwithstanding the foregoing, upon written request by Tenant, Landlord will use reasonable efforts to obtain a non-disturbance, subordination and attornment agreement from Landlord’s then current Mortgagee on such Mortgagee’s then current standard form of agreement. “Reasonable efforts” of Landlord shall not require Landlord to incur any cost, expense or liability to obtain such agreement, it being agreed that Tenant shall be responsible for any fee or review costs charged by the Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee’s form of non-disturbance, subordination and attornment agreement and return the same to Landlord for execution by the Mortgagee. Landlord’s failure to obtain a non-disturbance, subordination and attornment agreement for Tenant shall have no effect on the rights, obligations and liabilities of Landlord and Tenant or be considered to be a default by Landlord hereunder.
Assignment; Sublease 19.1 Lessor may sell, assign or otherwise transfer all or any part of its right, title and interest in and to the Equipment and/or this Lease Agreement to a third-party assignee, subject to the terms and conditions of this Lease Agreement including, but not limited to, the right to the quiet enjoyment of the Equipment by Lessee as set forth in Section 7.1 above. Such assignee shall assume all of the rights and obligations of Lessor under this Lease Agreement and shall relieve Lessor therefrom. Thereafter, all references to Lessor herein shall mean such assignee. Notwithstanding any such sale, assignment or transfer, the obligations hereunder shall remain absolute and unconditional as set forth in Section 7.2 above. 19.2 Lessor may also pledge, mortgage or grant a security interest in the Equipment and assign this Lease Agreement as collateral. Each such pledgee, mortgagee, lienholder or assignee shall have any and all rights as may be assigned by Lessor but none of the obligations of Lessor hereunder. Any pledge, mortgage or grant of security interest in the Equipment or assignment of this Lease Agreement shall be subject to the terms and conditions hereof including, but not limited to, the right to the quiet enjoyment of the Equipment by Lessee as set forth in Section 7.1 above. Lessor, by reason of such pledge, mortgage, grant of security interest or collateral assignment, shall not be relieved of any of its obligations hereunder which shall remain absolute and unconditional as set forth in Section 7.2 above. Upon the written request of Lessor, Lessee shall acknowledge such obligations the pledgee, mortgagee, lienholder or assignee. 19.3 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR PLEDGE ANY OF ITS INTEREST IN THIS LEASE AGREEMENT OR ANY OF THE EQUIPMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Any such sale, transfer, assignment, sublease, conveyance or pledge, whether by operation of law or otherwise, without the prior written consent of Lessor, shall be void.
Estoppel Certificate Tenant will, following any request by Landlord, promptly execute and deliver to Landlord an estoppel certificate substantially in form attached as Exhibit B, (i) certifying that this Lease is unmodified and in full force and effect, or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect, (ii) stating the date to which the rent and other charges are paid in advance, if any, (iii) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed, and (iv) certifying such other information about this Lease as may be reasonably requested by Landlord, its Lender or prospective lenders, investors or purchasers of the Building or the Property. Tenant's failure to execute and deliver such estoppel certificate within ten days after Landlord's request therefor shall be a material default by Tenant under this Lease, and Landlord shall have all of the rights and remedies available to Landlord as Landlord would otherwise have in the case of any other material default by Tenant, including the right to terminate this Lease and sue xxx damages proximately caused thereby, it being agreed and understood by Tenant that Tenant's failure to so deliver such estoppel certificate in a timely manner could result in Landlord being unable to perform committed obligations to other third parties which were made by Landlord in reliance upon this covenant of Tenant. Landlord and Tenant intend that any statement delivered pursuant to this paragraph may be relied upon by any Lender or purchaser or prospective Lender or purchaser of the Building, the Property, or any interest in them.
Assignment Subleasing (a) With the exception of a tenant that would render any Leased Property or a portion thereof a “tax-exempt use property” within the meaning of Section 168(h) of the Code, Tenant may assign its interest in this Lease and may sublet or grant licenses to any Leased Property in whole or in part, from time to time, without the consent of Landlord, provided that, in the case of an assignment, Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving effect to such assignment. Tenant shall have no rights to mortgage or otherwise hypothecate its leasehold interest under this Lease. With respect to any assignment or sublease to an entity that is not an Affiliate of Tenant and which relates to at least 10% of the usable square feet of any Leased Property, Tenant shall provide Landlord with a written summary of the material terms of such assignment or sublease prior to the commencement date thereof. For purposes of this Paragraph 17(a), the term “assignment” and “assign” shall not include any sale of the stock of Tenant, provided that (i) the Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving effect to such sale and (ii) such sale does not result in an Event of Default. (b) Each sublease or license of a Leased Property or any part thereof shall be subject and subordinate to the provisions of this Lease, and the term of each such sublease shall terminate on or before the Expiration Date. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made, provided that if Tenant assigns its interest hereunder to any entity that has acquired all, or substantially all, of Tenant’s assets, Tenant shall be relieved of all of its obligations under this Lease from and after the effective date of such assignment so long as (i) the assignee has executed the agreement referred to below in this paragraph and (ii) such sale or transfer of assets by Tenant does not result in an Event of Default. Notwithstanding any assignment or subletting, but subject to the foregoing sentence, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. No assignment or sublease shall impose any obligations on Landlord, except as otherwise provided in this Lease. Tenant agrees that in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by Tenant and its assignee in recordable form wherein the assignee shall agree to assume and agree to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment. In the case of a sublease which relates to more than 10% of the usable square feet of a Leased Property, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a duplicate original of such sublease; with respect to each other sublease, Tenant shall provide a copy thereof to Landlord promptly after Landlord’s request therefor. (c) Upon the occurrence and during the continuance of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents and other sums of money payable under any sublease or license of any Leased Property, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default, provided, however, that if such Event of Default is subsequently cured and this Lease has not been terminated, Landlord shall pay to Tenant all amounts it received pursuant to such assignment that have not been applied to the obligations of Tenant hereunder.