ASSIGNMENT, MORTGAGING AND SUBLETTING. Tenant covenants and ---------- -------------------------------------- agrees that neither this Lease nor the term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred, and that neither the Premises, nor any part thereof will be encumbered in any manner by reason of any act or omission (when Tenant has a legal duty to act) on the part of Tenant, or occupied by anyone other than Tenant, or for any use or purpose other than as permitted under this Lease, or be sublet, without the prior written consent of Landlord in every case, which consent Landlord shall not unreasonably withhold, delay or condition. Not in limitation of the foregoing, Tenant's request for Landlord's consent to subletting or assignment shall be submitted in writing no later than ten business days in advance of the proposed effective date of such proposed assignment or sublease, which request shall be accompanied by the following information (such information shall be collectively referred to as the "REQUIRED INFORMATION"): (i) the name, current address and business of the proposed assignee or sublessee; (ii) the amount and location of the space within the Premises proposed to be so subleased; (iii) the proposed effective date and duration of the assignment or subletting; and (iv) the proposed rent and other consideration to be paid to Tenant by such assignee or sublessee. Tenant also shall promptly supply Landlord with financial statements and other information as Landlord may request, prepared in accordance with generally accepted accounting principles, not more than ninety (90) days old when delivered to Landlord, indicating the net worth, liquidity and credit worthiness of the proposed assignee or sublessee in order to evaluate the proposed assignment or sublease. Tenant agrees to reimburse Landlord for legal fees and any other reasonable expenses and costs, not to exceed $500 in any single instance, incurred by Landlord in connection with any proposed assignment or subletting. Landlord may grant its consent to any assignment or sublease subject to the condition that any assignee or subtenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance satisfactory to Landlord, whereby any such assignee shall agree to be bound by, and any such subtenant shall agree that its sublease is subject and subordinate to, the covenants, agreements, terms, provisions and conditions set forth in this Lease. If Tenant shall sublet the Premises, having first obtained Landlord's consent, at a rent in excess of the Rent and Additional Rent due and payable by Tenant under the provisions of this Lease, such excess Rent and Additional Rent shall be divided equally between Landlord and Tenant after deducting Tenant's reasonable expenses of subletting, including commissions paid to brokers and reasonable attorney's fees, and the amortized (on a straight-line basis over the term of this Lease) of any Tenant's Work); it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall sublet the Premises at a rent less than that provided for herein. Further, it is agreed that in lieu of withholding or granting its consent Landlord may, within ten business days of receipt of a request from Tenant for consent to a proposed assignment or sublease of the entire Premises, terminate this Lease. If Landlord shall elect to terminate this Lease, it shall give Tenant written notice of its election, which notice shall set forth a date, not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of such request from Tenant, on which such termination shall be effective, and on such date Tenant shall surrender the Premises in accordance with the provisions of this Lease relating to the surrender of the Premises as the expiration of the term of this Lease. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the Premises or be deemed to be the written consent of Landlord mentioned in this Section XX. Any contrary or inconsistent provision of this Lease notwithstanding, Tenant will have the right, without Landlord's prior consent and without any right of Landlord to terminate this Lease, to assign this Lease or sublet all or any portion of the Premises to any person or business organization controlling, controlled by, or under common control with Tenant or in connection with a merger or consolidation of or into Tenant or the sale of all or substantially all of Tenant's assets. If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after an Event of Default, collect Rent and/or Additional Rent from the assignee, subtenant or occupant, and apply the net amount collected to the Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use of the Premises by an affiliate of Tenant shall affect the purpose for which the Premises may be used stated in Section II. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under the Lease and for compliance with all the obligations of Tenant under the Lease.
Appears in 1 contract
ASSIGNMENT, MORTGAGING AND SUBLETTING. Tenant Section 22.01. Tenant, for itself, its heirs distributee, executors, administrators, legal representatives, successors and assigns, expressly covenants and ---------- -------------------------------------- agrees that neither this Lease nor the term and estate hereby grantedit shall not assign, nor any interest herein or thereinmortgage, will be assignedpledge, mortgaged, pledged, encumbered or otherwise transferredencumber, and that neither all or any part of its interest in this Lease, sublet the Premises, nor in whole or in part, or suffer or permit the Premises or any part thereof will to be encumbered in any manner by reason of any act or omission (when Tenant has a legal duty to act) on the part of Tenant, used or occupied by anyone other than Tenant, or for any use or purpose other than as permitted under this Lease, or be subletothers, without the prior written consent of Landlord in every caseeach instance. Any assignment, which consent Landlord shall not unreasonably withholdsublease, delay mortgage, pledge, encumbrance or condition. Not transfer in limitation contravention of the foregoingprovisions of this Article 22 shall be void.
Section 22.02. If Tenant shall, Tenant's at any time or from time to time, desire to assign its interest in this Lease or to sublet the Premises, the Tenant shall submit to Landlord a written request for Landlord's consent to subletting or assignment shall be submitted in writing no later than ten business days in advance of the proposed effective date of such proposed assignment or subleasesubletting, which request shall be accompanied by the following information (such information shall be collectively referred to as the "REQUIRED INFORMATION"): information: (i) a true copy of the nameproposed instrument of assignment or sublease, current the effective or commencement date of which shall be not less than 30 nor more than 180 days after the giving of such notice, and copies of all other agreements between the parties signed concurrently or in connection with such assignment or sublease; (ii) a statement setting forth in reasonable detail the name and address and business of the proposed assignee or sublessee; (ii) subtenant, the amount nature of its business and location the proposed uses of the space within the Premises proposed to be so subleasedPremises; and (iii) current financial information about the proposed effective date and duration of the assignment or subletting; and (iv) the proposed rent and other consideration to be paid to Tenant by such proposes assignee or sublessee. Tenant also shall promptly supply Landlord with subtenant and any guarantor of its obligations, including, without limitation, its most recent financial statements statement, and any other information as Landlord may request, prepared in accordance reasonably request with generally accepted accounting principles, not more than ninety (90) days old when delivered respect to Landlord, indicating the net worth, liquidity and credit worthiness of the proposed assignee or sublessee in order to evaluate the proposed assignment or subleasesubtenant. Tenant agrees to reimburse Landlord for legal fees and any other reasonable expenses and costs, not to exceed $500 in any single instance, incurred by Landlord in connection with any proposed assignment or subletting. Landlord may grant its consent to any assignment or sublease subject to the condition that any assignee or subtenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance satisfactory to Landlord, whereby any such assignee shall agree by notice given to be bound by, and any such subtenant shall agree that its sublease is subject and subordinate to, the covenants, agreements, terms, provisions and conditions set forth in this Lease. If Tenant shall sublet the Premises, having first obtained Landlordwithin thirty (30) days after receipt of Tenant's request for consent, at a rent but only in excess of the Rent and Additional Rent due and payable by Tenant under the provisions of this Lease, such excess Rent and Additional Rent shall be divided equally between Landlord and Tenant after deducting event Tenant's reasonable expenses of subletting, including commissions paid to brokers and reasonable attorney's fees, and the amortized (on a straight-line basis over the term of this Lease) of any Tenant's Work); it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall sublet the Premises at a rent less than that provided for herein. Further, it request is agreed that in lieu of withholding or granting its consent Landlord may, within ten business days of receipt of a request from Tenant for consent to a proposed assignment or sublease of the entire Premises, terminate this Lease. If Landlord shall elect to terminate this Lease, it shall give Tenant written notice of its election, which notice shall set forth a date, not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of such request from Tenant, on which such termination shall be effective, and on such date Tenant shall surrender the Premises in accordance with the provisions of this Lease relating to the surrender of the Premises as the expiration of the term of this Lease. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the Premises or be deemed to be the written consent of Landlord mentioned in this Section XX. Any contrary or inconsistent provision of this Lease notwithstanding, Tenant will have the right, without Landlord's prior consent and without any right of Landlord to terminate this Lease, to assign this Lease or sublet all of the Premises, may terminate this Lease on a date to be specified in said notice (the "Termination Date"), which 37 38 date shall be not earlier than one (1) day before the effective date of the proposed assignment or any portion subletting nor later than sixty-one (61) day after said effective date, and, in such event, all rent and additional rent due hereunder shall be paid and apportioned to such date, and Tenant shall vacate and surrender the Premises on or before the Termination Date as if it were the Expiration Date. If Landlord shall so exercise its option to terminate this Lease, Landlord shall have the right to let all or portions of the Premises to any person (including, without limitation, Tenant's proposed assignee or business organization controllingsubtenant), controlled bywithout any liability to Tenant.
Section 22.03. If Landlord shall not exercise its option to terminate this Lease pursuant to Section 22.02 above, Landlord shall not unreasonably withhold its consent to the proposed assignment or subletting for the use expressly permitted in this Lease, provided that:
(1) the Premises shall not, without Landlord's prior consent, have been listed or otherwise publicly advertised for assignment or subletting at a rental rate lower than the higher of (a) the Fixed Rent and all Additional Rent then payable, or under common control (b) the then prevailing rental rate for other space in the Building;
(2) Tenant shall employ, as exclusive renting agent for subletting and assignment of this Lease, having the sole and exclusive right to lease, Landlord's managing agent for the Building or such broker as shall be approved by Landlord;
(3) Tenant shall not then be in default hereunder beyond notice and the expiration of any applicable cure period;
(4) the proposed assignee or subtenant shall have a financial standing, be of a character be engaged in a business, and propose to use the Premises, in a manner in keeping with the standards of the Building;
(5) The proposed assignee or subtenant shall not then be a tenant, subtenant or assignee of any space in the Building, nor shall the proposed assignee or subtenant be a person or entity with whom Landlord is then or has been, within the prior six-month period, negotiating to lease space in the Building;
(6) the character of the business to be conducted in the Premises by the proposed assignee or subtenant shall not be likely to increase building operating expenses, use of elevators, cleaning services or other services in the Building;
(7) there shall be no more than two subtenants in the Premises at any time; and
(8) Tenant or shall reimburse Landlord on demand for any reasonable 38 39 costs, including reasonable attorneys' fees and disbursements, that may be incurred by Landlord in connection with said assignment or sublease. If there is a merger dispute between Landlord and Tenant as to the reasonableness of Landlord's refusal to consent to any subletting or consolidation assignment, such dispute shall be determined by arbitration in The City of New York in accordance with the prevailing rules of the American Arbitration Association. The arbitrators shall be bound by the provisions of this Lease and shall not add to, subtract from or into otherwise modify such provisions. Notwithstanding any contrary provisions hereof, Tenant hereby waives any claim against Landlord for money damages which it may have based upon any assertion that Landlord has unreasonably withheld or delayed any consent to any assignment or a subletting pursuant to this Article. Tenant agrees that, in the sale event of all any such dispute, its sole remedy shall be an action or substantially proceeding to enforce such provisions or for specific performance.
Section 22.04. Every subletting hereunder is subject to the express condition, and by accepting a sublease hereunder each subtenant shall be conclusively deemed to have agreed, that if this Lease should be terminated prior to the Expiration Date of if Landlord should succeed to any portion of Tenant's estate in the Premises, then at Landlord's election such subtenant shall either surrender that portion of the Premises to Landlord within sixty (60) days of Landlord's request therefor, or shall attorn to and recognize Landlord as such subtenant's landlord under such sublease (except that Landlord shall not be liable for any previous act or omission of Tenant, nor bound by any modification of the Sublease not approved in writing by Landlord, nor liable for any security not received by Landlord or any prepaid rent in excess of one month's rent), and such subtenant shall promptly execute and deliver any instrument Landlord may reasonably request to evidence such attornment.
Section 22.05. Tenant shall deliver to Landlord a copy of each sublease or assignment made hereunder within ten (10) days of its execution. Tenant shall remain fully liable for the due and timely performance of all of Tenant's assets. If this Lease is assignedobligations hereunder notwithstanding any subletting or assignment provided for herein and, without limiting the generality of the foregoing, shall remain fully responsible and liable to Landlord for all acts and omissions of any subtenant, assignee or if the Premises anyone claiming by, through or under any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after an Event of Default, collect Rent and/or Additional Rent from the assignee, subtenant or occupantassignee which shall be in violation of any of the obligations of this Lease, and apply the net amount collected to the Rent herein reserved, but no any such assignment, subletting, occupancy or collection violation shall be deemed to be a waiver of this covenant, or violation by Tenant. Notwithstanding any assignment and assumption by the acceptance assignee of the assigneeobligations of Tenant hereunder, subtenant Tenant herein named, and each immediate or occupant remote successor in interest of Tenant herein named, shall remain liable jointly and severally (as a tenantprimary obligor) with its assignee and all subsequent assignees for the performance of Tenant's obligations hereunder, or a release of Tenant from the further performance by Tenant of covenants and shall remain fully and directly responsible and liable to Landlord for all acts and omission on the part of Tenant herein contained. The consent by Landlord any assignee subsequent to an assignment or subletting shall not it in violation of any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use of the Premises by an affiliate of Tenant shall affect the purpose for which the Premises may be used stated in Section II. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under the Lease and for compliance with all the obligations of Tenant under the this Lease.
Appears in 1 contract
Samples: Lease Agreement (Russian Wireless Telephone Co Inc)
ASSIGNMENT, MORTGAGING AND SUBLETTING. Tenant covenants and ---------- -------------------------------------- agrees that neither this Lease nor the term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred, and that neither the Premises, nor any part thereof will be encumbered in any manner by reason of any act or omission (when Tenant has a legal duty to act) on the part of Tenant, or occupied used or occupied, or utilized for desk space or for mailing privileges, by anyone other than Tenant, or for any use or purpose other than as permitted under this Leasestated herein, or be subletsublet or offered or advertised for subletting, without the prior written consent of Landlord in each and every case, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding anything contained herein to the contrary, Tenant shall have no right (i) to advertise publicly to assign this lease or sublet its interest hereunder, (ii) to assign this lease or sublet its interest hereunder at more than twenty percent (20%) below market rental rates if the Building shall be less than fully occupied, or (iii) to assign this lease or sublet its interest hereunder to any individual or entity with whom Landlord is then negotiating to rent other space in the Building; provided that, the restrictions described in this sentence shall not unreasonably withhold, delay be of no force or conditioneffect during the last two (2) years of the term of this Lease. Not in limitation of the foregoing, Tenant's ’s request for Landlord's ’s consent to subletting or assignment shall be submitted in writing no later than ten business forty-five (45) days in advance of the proposed effective date of such proposed assignment or sublease, which request shall be accompanied by the following information (such information shall be collectively referred to as the "REQUIRED INFORMATION"“Required Information”): (i) the name, current address and business of the proposed assignee or sublesseesubtenant; (ii) the amount precise square footage and location of the space within portion of the Premises proposed to be so subleasedsubleased or assigned; (iii) the proposed effective date and duration term of the proposed assignment or subletting; and (iv) the proposed rent and other consideration to be paid to Tenant by such proposed assignee or sublesseesubtenant. Tenant also shall promptly supply Landlord with financial statements and other information as Landlord may request, prepared in accordance with generally accepted accounting principles, principles not more than ninety (90) days old when delivered to Landlord, indicating the net worth, liquidity and credit worthiness of the proposed assignee or sublessee subtenant in order to permit Landlord to evaluate the proposed assignment or sublease. Tenant agrees to reimburse Landlord for legal fees and any other reasonable expenses and costs, not to exceed $500 in any single instance, costs incurred by Landlord in connection with any proposed assignment or subletting. Landlord’s consent shall be granted only if any and all rights contained within this Lease of expansion, extension, renewal, first offer, and the like are deleted and/or waived by Tenant, and if requested by Landlord may grant its consent to any assignment such assignee or sublease subject to subtenant, and only if the condition that any assignee or subtenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance satisfactory to Landlord, Landlord whereby any such the assignee or subtenant shall agree to be bound by, by and any such subtenant shall agree that its sublease is subject and subordinate to, upon the covenants, agreements, terms, provisions and conditions set forth in this Lease. If Tenant shall sublet the Premises, having first obtained Landlord's ’s consent, at a rent rental in excess of the Rent rent and Additional Rent additional rent due and payable by Tenant under the provisions of this Lease, fifty percent (50%) such excess Rent and Additional Rent shall be divided equally between Landlord and Tenant after deducting Tenant's reasonable expenses become the sole property of sublettingLandlord, including commissions paid to brokers and reasonable attorney's fees, and the amortized (on a straight-line basis over the term of this Lease) of any Tenant's Work); it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall sublet the Premises at a rent rental less than that provided for herein. Further, it is agreed that in lieu of withholding or granting its consent Landlord may, within ten business thirty (30) days of receipt of a request from Tenant for consent from Tenant, cancel this Lease as to a the entire Premises or as to so much of the Premises as Tenant has proposed for assignment or sublease of the entire Premises, terminate this Leasesubletting. If Landlord shall elect to terminate cancel this LeaseLease as to all or a portion of the Premises, it shall give Tenant written notice of its election, which notice shall set forth a “termination date, ” which shall be not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of such Tenant’s request from Tenant, on which such termination shall be effectiveto assign or sublet, and on such date that “termination date” Tenant shall surrender the Premises or portion thereof for which this Lease has been canceled, in accordance with the provisions of this Lease relating to the surrender of the Premises as at the expiration or termination of the term of this Lease. Notwithstanding the foregoing if the Landlord elects to recapture all or any portion of the Premises, Tenant may withdraw its request for consent within five (5) business days after the receipt of Landlord’s recapture notice. If the cancellation shall be as to a portion of the Premises only, then the Rent and Additional Rent shall be adjusted proportionately to reflect said cancellation. It is hereby expressly understood and agreed, however, if Tenant is a corporation, that the assignment, or transfer of this Lease, and the term and estate granted, to any corporation into which Tenant is merged or with which Tenant is consolidated, which corporation shall have a net worth at least equal to that of Tenant immediately prior to such merger or consolidation (such corporation being hereinafter called “Assignee”), without the prior written consent of Landlord shall not be deemed to be prohibited hereby, if, and upon the express condition that, Assignee and Tenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance reasonably satisfactory to Landlord whereby Assignee shall agree to be bound by and upon the covenants, agreements, terms, provisions and conditions set forth in this Lease on the part of Tenant to be performed and whereby Assignee shall expressly agree that the provisions of this Section XX shall, notwithstanding such assignment or transfer, continue to be binding upon it with respect to all future assignments and transfers. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the Premises or be deemed to be the written consent of Landlord mentioned in this Section XX. Any contrary or inconsistent provision of this Lease notwithstanding, Tenant it being expressly understood that such listing is a privilege extended by Landlord revocable at will have the right, without Landlord's prior consent and without any right of Landlord by written notice to terminate this Lease, to assign this Lease or sublet all or any portion of the Premises to any person or business organization controlling, controlled by, or under common control with Tenant or in connection with a merger or consolidation of or into Tenant or the sale of all or substantially all of Tenant's assets. If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after an Event of Defaultdefault by Tenant, collect Rent and/or Additional Rent from the assigneeAssignee, subtenant or occupant, and apply the net amount collected to the Rent and/or Additional Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assigneeAssignee, subtenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use of the Premises by an affiliate of Tenant shall affect the purpose for which the Premises may be used as stated in Section II. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under the Lease and for compliance with all the obligations of Tenant under the Lease.
Appears in 1 contract
Samples: Lease Agreement (Ace Comm Corp)
ASSIGNMENT, MORTGAGING AND SUBLETTING. Tenant covenants and ---------- -------------------------------------- agrees that neither this Lease nor the term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred, and that neither the Premises, nor any part thereof will be encumbered in any manner by reason of any act or omission (when Tenant has a legal duty to act) on the part of Tenant, or occupied used or occupied, or utilized for desk space or for mailing privileges, by anyone other than Tenant, or for any use or purpose other than as permitted under this Leasestated herein, or be subletsublet or offered or advertised for subletting, without the prior written consent of Landlord in every caseLandlord, which consent Landlord shall may not be unreasonably withhold, delay withheld or conditiondelayed. Not in limitation of the foregoing, Tenant's request for Landlord's consent to subletting or assignment shall be submitted in writing no later than ten business sixty (60) days in advance of the proposed effective date of such proposed assignment or sublease, which request shall be responded to by Landlord within thirty (30) days of receipt thereof, and which request shall be accompanied by the following information (such information shall be collectively referred to as the "REQUIRED INFORMATION"): (i) the name, current address and business of the proposed assignee or sublessee; (ii) the amount and location of the space within the Premises proposed to be so subleased; (iii) the proposed effective date and duration of the assignment or subletting; and (iv) the proposed rent and other consideration to be paid to Tenant by such assignee or sublessee. Tenant also shall promptly supply Landlord with financial statements and other information as Landlord may request, prepared in accordance with generally accepted accounting principles, principles not more than ninety (90) days old when delivered to LandlordLandlord (if available), indicating the net worth, liquidity and credit worthiness of the proposed assignee or sublessee in order to evaluate the proposed assignment or sublease. Tenant agrees to reimburse Landlord for legal fees and any other reasonable expenses and costs, not to exceed $500 in any single instance, incurred by Landlord in connection with any proposed assignment or subletting. Landlord may grant its consent to any assignment or sublease subject to the condition that any assignee or subtenant shall promptly execute, acknowledge, and deliver to Landlord an agreement in form and substance satisfactory to Landlord, whereby any such assignee shall agree to be bound by, and any such subtenant shall agree that its sublease is subject and subordinate to, the covenants, agreements, terms, provisions and conditions set forth in this Lease. If Tenant shall sublet the Premises, having first obtained Landlord's consent, at a rent in excess of the Rent and Additional Rent due and payable by Tenant under the provisions of this Lease, such excess Rent and Additional Rent shall be divided equally between Landlord and Tenant after deducting Tenant's reasonable expenses of subletting, including commissions paid to brokers and reasonable attorney's fees, and the amortized (on a straight-line basis over the term of this Lease) of any Tenant's Work); it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall sublet the Premises at a rent less than that provided for herein. Further, it is agreed that in lieu of withholding or granting its consent Landlord may, within ten business days of receipt of a request from Tenant for consent to a proposed assignment or sublease of the entire Premises, terminate this Lease. If Landlord shall elect to terminate this Lease, it shall give Tenant written notice of its election, which notice shall set forth a date, not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of such request from Tenant, on which such termination shall be effective, and on such date Tenant shall surrender the Premises in accordance with the provisions of this Lease relating to the surrender of the Premises as the expiration of the term of this Lease. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the Premises or be deemed to be the written consent of Landlord mentioned in this Section XX. Any contrary or inconsistent provision of this Lease notwithstanding, Tenant will have the right, without Landlord's prior consent and without any right of Landlord to terminate this Lease, to assign this Lease or sublet all or any portion of the Premises to any person or business organization controlling, controlled by, or under common control with Tenant or in connection with a merger or consolidation of or into Tenant or the sale of all or substantially all of Tenant's assets. If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after an Event of Default, collect Rent and/or Additional Rent from the assignee, subtenant or occupant, and apply the net amount collected to the Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use of the Premises by an affiliate of Tenant shall affect the purpose for which the Premises may be used stated in Section II. Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under the Lease and for compliance with all the obligations of Tenant under the Lease.liquidity
Appears in 1 contract
Samples: Lease Agreement (Net Genesis Corp)
ASSIGNMENT, MORTGAGING AND SUBLETTING. Tenant Section 22.01 Tenant, for itself, its heirs, distributee, executors, administrators, legal representatives, successors and assigns, expressly covenants and ---------- -------------------------------------- agrees that neither this Lease nor the term and estate hereby grantedit shall not assign, nor any interest herein or thereinmortgage, will be assignedpledge, mortgaged, pledged, encumbered or otherwise transferredencumber, and that neither all or any part of its interest in this Lease, sublet the Premises, nor in whole or in part, or suffer or permit the Premises or any part thereof will to be encumbered in any manner by reason of any act or omission (when Tenant has a legal duty to act) on the part of Tenant, used or occupied by anyone other than Tenant, or for any use or purpose other than as permitted under this Lease, or be subletothers, without the prior written consent of Landlord in every caseeach instance. Any assignment, which consent Landlord shall not unreasonably withholdsublease, delay mortgage, pledge, encumbrance or condition. Not transfer in limitation contravention of the foregoingprovisions of this Article 22 shall be void.
Section 22.02 If Tenant shall, Tenant's at any time or from time to time, desire to assign its interest in this Lease or to sublet the Premises, the Tenant shall submit to Landlord a written request for Landlord's ’s consent to subletting or assignment shall be submitted in writing no later than ten business days in advance of the proposed effective date of such proposed assignment or subleasesubletting, which request shall be accompanied by the following information (such information shall be collectively referred to as the "REQUIRED INFORMATION"): information: (i) a true copy of the nameproposed instrument of assignment or sublease, current the effective or commencement date of which shall be not less than 60 nor more than 180 days after the giving of such notice, and copies of all other agreements between the parties signed concurrently or in connection with such assignment or sublease; (ii) a statement setting forth in reasonable detail the name and address and business of the proposed assignee or sublessee; (ii) subtenant, the amount nature of its business and location the proposed uses of the space within the Premises proposed to be so subleasedPremises; and (iii) the proposed effective date and duration of the assignment or subletting; and (iv) the proposed rent and other consideration to be paid to Tenant by such assignee or sublessee. Tenant also shall promptly supply Landlord with current financial statements and other information as Landlord may request, prepared in accordance with generally accepted accounting principles, not more than ninety (90) days old when delivered to Landlord, indicating the net worth, liquidity and credit worthiness of about the proposed assignee or sublessee subtenant and any guarantor of its obligations, including, without limitation, its most recent financial statement, and any other information Landlord may reasonably request with respect to the proposed assignee or subtenant. Landlord, by notice given to Tenant within sixty (60) days after receipt of Tenant’s request for consent, may terminate this Lease on a date to be specified in order to evaluate said notice (the “Termination Date”), which date shall be not earlier than one (1) day before the effective date of the proposed assignment or subleasesubletting nor later than sixty-one (61) days after said effective date, and, in such event, all rent and additional rent due hereunder shall be paid and apportioned to such date, and Tenant shall vacate and surrender the Premises on or before the Termination Date as if it were the Expiration Date. If Landlord shall so exercise its option to terminate this Lease, Landlord shall have the right to let all or portions of the Premises to any person (including, without limitation, Tenant’s proposed assignee or subtenant), without any liability to Tenant.
Section 22.03 If Landlord shall not exercise its option to terminate this Lease pursuant to Section 22.02 above, Landlord shall not unreasonably withhold its consent to the proposed assignment or subletting for the use expressly permitted in this Lease, provided that:
(1) the Premises shall not, without Landlord’s prior consent, have been listed or otherwise publicly advertised for assignment or subletting at a rental rate lower than the higher of (a) the Fixed Rent and all Additional Rent then payable, or (b) the then prevailing rental rate for other space in the Building, and Tenant agrees shall not enter into any sublease at a lower rental rate than the Fixed Rent and all Additional Rent then payable;
(2) Tenant shall employ, as exclusive renting agent for subletting and assignment of this Lease, having the sole and exclusive right to lease, Landlord’s managing agent for the Building or such broker as shall be approved by Landlord;
(3) Tenant shall not then be in default hereunder;
(4) the proposed assignee or subtenant shall have a financial standing, be of a character be engaged in a business, and propose to use the Premises, in a manner in keeping with the standards of the Building;
(5) The proposed assignee or subtenant shall not then be a tenant, subtenant or assignee of any space in the Building, nor shall the proposed assignee or subtenant be a person or entity with whom Landlord is then or has been, within the prior six-month period, negotiating to lease space in the Building;
(6) the character of the business to be conducted in the Premises by the proposed assignee or subtenant shall not be likely to increase building operating expenses, use of elevators, cleaning services or other services in the Building;
(7) there shall be no more than one subtenant in the Premises at any time;
(8) Tenant shall reimburse Landlord on demand for legal any costs, including reasonable attorneys’ fees and any other reasonable expenses and costsdisbursements, not to exceed $500 in any single instance, that may be incurred by Landlord in connection with any proposed said assignment or sublettingsublease; and
(9) the proposed assignee or subtenant shall not be any entity which is entitle to diplomatic or sovereign immunity or which is not subject to service of process in the State of New York or to the jurisdiction of the courts of the State of New York and the United States located in New York County. If there is a dispute between Landlord and Tenant as to the reasonableness of Landlord’s refusal to consent to any subletting or assignment, such dispute shall be determined by arbitration in The City of New York in accordance with the prevailing rules of the American Arbitration Association. The arbitrators shall be bound by the provisions of this Lease and shall not add to, subtract from, or otherwise modify such provisions. Notwithstanding any contrary provisions hereof, Tenant hereby waives any claim against Landlord for money damages which it may grant its have based upon any assertion that Landlord has unreasonably withheld or delayed any consent to any assignment or sublease a subletting pursuant to this Article. Tenant agrees that, in the event of any such dispute, its sole remedy shall be an action or proceeding to enforce such provision or for specific performance.
Section 22.04 Every subletting hereunder is subject to the condition express condition, and by accepting a sublease hereunder each subtenant shall be conclusively deemed to have agreed, that if this Lease should be terminated prior to the Expiration Date or if Landlord should succeed to any assignee portion of Tenant’s estate in the Premises, then at Landlord’s election such subtenant shall either surrender that portion of the Premises to Landlord within sixty (60) days of Landlord’s request therefor, or shall attorn to and recognize Landlord as such subtenant’s landlord under such sublease (except that Landlord shall not be liable for any previous act or omission of Tenant, nor bound by any modification of the Sublease not approved in writing by Landlord, nor liable for any security not received by landlord or any prepaid rent in excess of one month’s rent), and such subtenant shall promptly execute and deliver any instrument Landlord may reasonably request to evidence such attornment.
Section 22.05 Tenant shall deliver to Landlord a copy of each sublease or assignment made hereunder within ten (10) days after the date of its execution. Tenant shall remain fully liable for the due and timely performance of all of Tenant’s obligations hereunder notwithstanding any subletting or assignment provided for herein and, without limiting the generality of the foregoing, shall remain fully responsible and liable to Landlord for all acts and omissions of any subtenant, assignee or anyone claiming by, through or under any subtenant or assignee which shall be in violation of any of the obligations of this Lease, and any such violation shall be deemed to be a violation by Tenant. Notwithstanding any assignment and assumption by the assignee of the obligations of Tenant hereunder, Tenant herein named, and each immediate or remote successor in interest of Tenant herein named, shall remain liable jointly and severally (as a primary obligor) with its assignee and all subsequent assignees for the performance of Tenant’s obligations hereunder, and shall remain fully and directly responsible and liable to Landlord for all acts and omission on the part of any assignee subsequent to it in violation of any of the obligations of this Lease.
Section 22.06 Each sublease shall be in form and content satisfactory to Landlord, and shall contain provisions setting forth the matters contained in Section 22.04 above, and further provisions that: (i) the sublease is subject and subordinate to this Lease and all amendments and modifications hereof, and (ii) the sublease shall not be assigned, transferred, pledged, mortgaged or encumbered by the subtenant, in whole or in part, nor shall the sublet premises be further sublet or used or occupied by persons other than the subtenant, without the prior written consent of Landlord in each instance. No subletting shall end later than one day before the Expiration Date of this Lease.
Section 22.07 No assignment of Tenant’s interest in this Lease shall be binding upon Landlord unless the assignee shall execute, acknowledge, acknowledge and deliver to Landlord an agreement agreement, in form and substance satisfactory to Landlord, whereby any such assignee shall agree agrees unconditionally to be personally bound by, by and any such subtenant shall agree that its sublease is subject and subordinate to, the covenants, agreements, terms, provisions and conditions set forth in this Lease. If Tenant shall sublet the Premises, having first obtained Landlord's consent, at a rent in excess to perform all of the Rent obligations of Tenant hereunder and Additional Rent due and payable by Tenant under further expressly agrees that notwithstanding such assignment the provisions of this Lease, Article shall continue to be binding upon such excess Rent assignee with respect to all future assignments and Additional Rent transfers.
Section 22.08 If Landlord shall be divided equally between Landlord and Tenant after deducting Tenant's reasonable expenses of have consented to any assignment or subletting, including commissions paid to brokers and reasonable attorney's feesor if there is any transfer of this Lease by operation of law or otherwise, and if Tenant shall receive any consideration from its assignee or subtenant for or in connection with the amortized (on a straight-line basis over assignment of Tenant’s interest in this Lease or the term subletting of this Lease) of the Premises or any Tenant's Work); it being agreedpart thereof, howeveras the case may be, that Landlord shall not be responsible for any deficiency or if Tenant shall sublet the Premises or a part thereof at a rent rental rate (including additional rent) which shall exceed the rental rate payable hereunder (including, in any such case, but not limited to, sums paid for the sale or rental of Tenant’s fixtures, leasehold improvements, equipment, furniture or other personal leasehold property less, in the case of a sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income tax returns), then Tenant shall pay to Landlord, as Additional Rent hereunder, the amount of such excess. In the case of a subletting of less than that provided for herein. Further, it is agreed that in lieu of withholding or granting its consent Landlord may, within ten business days of receipt of a request from Tenant for consent to a proposed assignment or sublease of the entire Premises, terminate this Lease. If Landlord shall elect to terminate this Lease, it shall give Tenant written notice the above calculation of its election, which notice shall set forth a date, not less than sixty (60) or more than one hundred twenty (120) days from the receipt by Landlord of such request from Tenant, on which such termination rental rates shall be effectivemade on a per square foot basis.
Section 22.09 If Tenant or any general partner of Tenant is ever a partnership or corporation or other entity, and on such date Tenant shall surrender the Premises in accordance with the provisions of this Lease relating to lease limiting or prohibiting the surrender assignment hereof or subletting of the Premises as shall be deemed to have been violated by (i) the expiration transfer or transfers of a partnership interest, stock ownership or other equity interest, or (ii) the issuance of new such partnership or stock interests, or (iii) the merger, dissolution or liquidation, in or of Tenant, or any entity which is a general partner of Tenant, whether voluntarily or by operation of law, if such happening or happenings, individually or in the aggregate result in (a) the admission of a new general partner of Tenant, or (b) a change in control (hereinafter defined ) of Tenant or any general partner of Tenant. As used in the preceding sentence the term “control” shall mean actual operating control of Tenant’s ordinary business operations or a beneficial ownership interest (direct or indirect) of 20% or more in Tenant or any general partner of Tenant. Throughout the term of this Lease. The listing , within ten (10) days after request by Landlord, Tenant will advise Landlord by sworn statement in writing as to the identity and ownership interests of its shareholders, partners and other principals.
Section 22.10 In the event that Tenant fails to execute and deliver any name other than that assignment or sublease to which Landlord consented under the provisions of Tenantthis Article within forty-five (45) days after the giving of such consent, whether on the doors then Tenant shall again comply with all of the Premises or on the directory, or otherwise, shall not operate to vest any right or provisions of this Article before assigning its interest in this Lease or in subletting the Premises or be deemed to be the written Premises.
Section 22.11 The consent of Landlord mentioned to an assignment or a subletting shall not relieve Tenant from obtaining the express consent in this Section XX. Any contrary or inconsistent provision of this Lease notwithstanding, Tenant will have the right, without Landlord's prior consent and without any right writing of Landlord to terminate this Lease, to assign any further assignment or subletting.
Section 22.12 If Tenant’s interest in this Lease or sublet all or any portion of the Premises to any person or business organization controlling, controlled by, or under common control with Tenant or in connection with a merger or consolidation of or into Tenant or the sale of all or substantially all of Tenant's assets. If this Lease is be assigned, or if the Premises or any part thereof is be sublet or occupied by anybody anyone other than Tenant, upon default by Tenant, Landlord may, after an Event of Default, may collect Rent and/or Additional Rent rent from the assignee, subtenant or occupant, occupant and apply the net amount collected to the Rent rental herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of the provisions of this covenant, Article or of any default hereunder or the acceptance of the assignee, subtenant or occupant as a tenantTenant, or a release of Tenant from the further observance or performance by Tenant of covenants all of the covenants, conditions, terms and provisions on the part of Tenant herein contained. to be performed or observed.
Section 22.13 Tenant agrees to forever indemnify and hold harmless Landlord from and against the claims of any proposed subtenant or assignee relating to Landlord’s response to Tenant’s request for consent to an assignment or subletting, and claims of any broker who alleges to have played any part in bringing about a proposed sublease or assignment in each case whether or not such sublessor assignment shall be consented to by Landlord and/or consummated, and against all losses, damages, costs and expenses incurred by Landlord (including, without limitation, attorneys fees) relating to or resulting from such claims.
Section 22.14 The listing or posting of any name, other than that of Tenant, whether on the door or exterior wall of the Premises, the Building’s tenant directory in the lobby or elevator, or elsewhere, shall not:
(i) Constitute a waiver of Landlord’s right to withhold consent to any sublet or assignment pursuant to this Article 22.
(ii) Be deemed an implied consent by Landlord to an assignment or subletting shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or subletting. No assignment, subletting or use sublet of the Premises by an affiliate of Tenant shall affect the purpose for which the Premises may be used stated in Section II. Notwithstanding or any permitted portion thereof, to any assignment or sublettingtransfer of the Lease, Tenant shall at all times remain directlyor to any unauthorized occupancy of the Premises, primarily and fully responsible and liable for except in accordance with the payment express terms of all sums payable under the Lease; or
(iii) Operate to vest any right or interest in the Lease and for compliance with all or in the obligations of Tenant under the LeasePremises.
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