ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant. (b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that: (c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord; (d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building; (e) the premises shall be used only for the purpose set forth in Article 1 hereof; (f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease; (g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and (h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and (i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 4 contracts
Samples: Lease Agreement, Lease Agreement, Store Lease
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesPremises, the Building, the Property nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than Use of the Premises as hereinbefore set forthstated in the Article contained herein entitled “REFERENCE DATA”, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case. Landlord agrees not to unreasonably withhold, delay or condition its consent provided that
(a) the Lease is in full force and effect,
(b) Tenant is not and has not at any time during the Term been in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a material default under the Lease,
(c) the financial worth of the proposed assignee or subtenant is satisfactory to Landlord provided that Landlord shall not deny consent based on the financial worth of the proposed assignee or subtenant provided that such party has a net worth equal to or greater than the greater of (x) the net worth of Tenant upon the date of this Lease or (y) the net worth of Tenant immediately prior to the transfer (as determined in accordance with generally accepted accounting principles), and
(d) any assignee or subtenant of the entire Premises shall assume, by written recordable instrument, in form and content satisfactory to Landlord, the due performance of ail Tenant’s obligations under this Lease, including any accrued obligations at the time of the assignment or subletting of the entire Premises or, in the case where a subtenant subleases a portion of the Premises, such subtenant acknowledges that the sublease is subject and any attempt thereat subordinate to this Lease. For purposes hereof, the transfer of a controlling interest in the corporation or other entity constituting Tenant shall be void any of no force or effect. For the purposes deemed an assignment of this Lease. Notwithstanding the foregoing language of this Article to the contrary, provided that
(ia) the transfer or transferee or sale or sales Lease is in full force and effect,
(in either one or a series of transactionsb) of fifty (50%) percent or more Tenant is not at the time of the capital stock effective date of a Permitted Transfer in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a material default under the Lease,
(c) the Affiliate (as defined below) shall assume, by written recordable instrument, in reasonable form and content satisfactory to Landlord (the “Assumption Document”), the due performance of all Tenant’s obligations under this Lease, if Tenant is a corporation or fifty (50%) percent or more including any accrued obligations at the time of the ownership interests assignment or subletting,
(d) [INTENTIONALLY OMITTED], and
(e) Tenant provides Landlord with a Notice of Tenant, if Tenant is a partnership or Permitted Transfer (ii) a merger or consolidation of Tenant into or as described and in accordance with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (iiprovisions below), Landlord’s consent shall not be deemed required with respect to be an assignment of this Lease requiring or subletting of the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises entire Premises or any part portion thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no an Affiliate for such assignment, subletting, occupancy or collection time as such entity remains an Affiliate. The foregoing shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant“Permitted Transfer”.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 3 contracts
Samples: Office Building Lease (Allena Pharmaceuticals, Inc.), Office Building Lease (Allena Pharmaceuticals, Inc.), Office Building Lease (Allena Pharmaceuticals, Inc.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 3 contracts
Samples: Lease Agreement, Lease Agreement, Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) . Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) : Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) ; in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) ; the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) ; an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) ; each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) and Assignee shall deposit with Landlord an amount equal to ( ( ) months of the fixed rent then in effect; and
(i) and Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with LandlordXxxxxxxx's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of LandlordXxxxxxxx, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by LandlordXxxxxxxx's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Tenant shall not by operation of law or otherwise (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the Demised Premises or any part hereof of thereofthereof or allow the same to be used or occupied by others, will be assignedother than Tenant's employees, mortgaged(c) mortgage, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor Demised Premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord in every case and any attempt thereat which shall not be void any of no force unreasonably withheld, conditioned, or effectdelayed. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, or the transfer of control in either one any limited partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions) , shall be deemed an assignment of fifty (50%) percent or more this Lease, except that the transfer of the outstanding capital stock of Tenantany corporate tenant, if or subtenant, shall be deemed not to include the sale of such stock by persons or parties other than those deemed "Affiliates" of Tenant is a corporation within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or fifty (50%) percent or more of the ownership interests of Tenantthrough any recognized stock exchange, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 takeover agreement shall be deemed a waiver transfer of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's covenants contained interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant shall promptly notify Landlord of any proposed assignment, sublease or "transfer", as defined in this Article 7 Section. Notwithstanding anything herein to the contrary, provided Tenant is not in default beyond any notice and cure period, under the terms of this Lease, Tenant shall have the right to assign the Lease or elsewhere sublet portions of the Demised Premises (i) to an affiliate of Tenant, (ii) in connection with any merger or acquisition of or by Tenant or (iii)to any applicable governmental agency in connection with any economic development incentives received by Tenant without Landlord's prior written consent, provided that Tenant notifies Landlord of said assignment or sublease, in writing, which notice shall include a copy of the fully executed assignment or sublease, as the same may be applicable. Nothing herein will allow Tenant or its subtenant or assignee to use the Demised Premises in any manner other than the Permitted Use.
11.02. Any assignment or transfer shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord a recordable agreement, in form and substance reasonably satisfactory to Landlord, whereby the assignee shall assume the obligations and performance of this Lease and shall agree to be bound by and upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions of Section 11.01 hereof shall, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Landlord from an assignee or transferee or any other party, remain in full force and effect. Tenant shall remain fully and primarily liable for the assignee, subtenant or occupant as Tenant, or a release payment of Tenant as sub-lessor or assignor from the further Fixed Annual Rent and additional rent due and to become due under this Lease and for the performance by Tenant of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder Tenant to be kept, performed or observed, notwithstanding any such assignment. Tenant's No sublease shall release Tenant of any liability under hereunder of any kind or nature whatsoever.
11.03. Landlord shall not unreasonably withhold, condition or delay its consent to an assignment of this Lease or a subletting of the whole or part of the Demised Premises for substantially the remainder of the term of this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided thatprovided:
(ca) Tenant shall furnish Landlord with the name and business address of the proposed subtenant or assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with subtenant's or assignee's business, or activities, such references and current financial information with respect to net worth, credit and financial responsibility as are reasonably satisfactory to Landlord, and an executed counterpart of the sublease or assignment agreement;
(b) The proposed assigned certified by subtenant or assignee is a certified public accountant reputable party whose financial net worth, credit and referencesfinancial responsibility is, including banking referencesconsidering the responsibilities involved, reasonably satisfactory to Landlord;
(dc) in the judgment The nature and character of Landlord, the proposed assignee is financially responsible with respect to subtenant or assignee, its proposed obligations under business or activities and intended use of the proposed assignment agreement and is of a character and reputationDemised Premises is, and engaged in a businessLandlord's reasonable judgment, which is in keeping with the standards of the BuildingBuilding and the floor or floors on which the Demised Premises are located (it is expressly understood and agreed that Landlord will not consent to the assignment or subletting of the Demised Premises to any physician or other medical practitioner that performs abortions or to any other organization that Landlord deems in its sole and absolute discretion to be inconsistent with the character of the Building notwithstanding that the proposed assignee or subtenant's use of the Demised Premises conforms with the Permitted Use);
(d) The proposed subtenant or assignee is not then an occupant of any part of the building or a party who dealt with Landlord or Landlord's agent (directly or through a broker) with respect to space in the Building during the twelve (12) months immediately preceding Tenant's request for Landlord's consent;
(e) All costs incurred with respect to providing reasonably appropriate means of ingress and egress from the premises shall sublet space or to separate the sublet space from the remainder of the Demised Premises shall, subject to the provisions of Article 6 with respect to alterations, installations, additions or improvements, be used only for the purpose set forth in Article 1 hereofborne by Tenant;
(f) an executed duplicate original, in form satisfactory Each sublease shall state specifically that (i) it is subject to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the terms, covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;, (ii) the subtenant or assignee, as the case may be, will not have the right to a further assignment thereof or sublease or assignment thereunder, or to allow the Demised Premises to be used by others, without the consent of Landlord in each instance, (iii) a consent by Landlord thereto shall not be deemed or construed to modify, amend or affect the terms and provisions of this Lease, or Tenant's obligations hereunder, which shall continue to apply to the premises involved, and the occupants thereof, as if the sublease or assignments had not been made, (iv) if Tenant defaults in the payment of any rent, Landlord is authorized to collect any rents due or accruing from any assignee, subtenant or other occupant of the Demised Premises and to apply the net amounts collected to the Fixed Annual Rent and additional rent reserved herein, (v) the receipt by Landlord of any amounts from an assignee or subtenant, or other occupant of any part of the Demised Premises shall not be deemed or construed as releasing Tenant from Tenant's obligations hereunder (except to the extent that Tenant will receive a credit for any amounts received by Landlord from third parties, it being the intent of the parties that Landlord shall not be entitled to a double recovery)or the acceptance of that party as a direct tenant, and (vi) Tenant is not released from primary liability hereunder as a result of any assignment or sublease; and
(g) each Tenant, together with requesting Landlord's consent hereunder, shall have paid Landlord One Thousand ($1,000) Dollars to review the requested consent including any attorneys' fees incurred by Landlord. Landlord may withhold its consent to any assignment or sublease if Tenant fails to provide in a timely fashion any and all reasonably required information hereunder or if any of the information concerning the proposed assignment or sublease is reasonably unacceptable to Landlord .
11.04. Provided Tenant is not in default pursuant to the terms of this Lease beyond any applicable notice and grace period, Tenant may notify Landlord that it wishes to sublet the portion of the first floor space which is utilized for retail sales (the "Retail Space") to a bona fide third party (other than Tenant's Affiliates or as a result of a merger or acquisition of or by Tenant). Upon receipt of said notice and Tenant's compliance with those items set forth in (a) through (g) above, Landlord may, in its sole and absolute discretion, either, (i) accept said sublease or (ii) recapture the Retail Space within ninety (90) days from the date of said notice from Tenant. Upon recapture, the Lease shall no longer apply with respect to the Retail Space and the Fixed Annual Rent, additional rent (to the extent applicable) and Tenant's Proportionate Share shall be subject and subordinate to all reduced proportionately based upon the size of the covenantsRetail Space.
(a) Subject to Tenant's right to assign or sublet without Landlord's consent, agreementsas specifically set forth herein, termsif, provisions without first obtaining Landlord's written consent thereto Tenant shall have assigned this Lease or sublet the Demised Premises, in whole or in part, to any assignee, sublessee , then Landlord shall have the right of "Recapture" (hereinafter defined) as set forth below, in addition to any other right or remedy available to Landlord under this Lease or at law or in equity, and conditions without limiting any of such rights;in the case of an assignment of this Lease, or a proposed assignment of this Lease to any third party other than an Affiliate of Tenant or in connection with a merger or acquisition of or by Tenant, Landlord shall have the right to terminate this Lease (a "Recapture") by giving Tenant a notice of termination (the "Recapture Notice") within twenty (20) days following Landlord's receipt of Tenant's notice or request for consent to such assignment or within six (6) months following Landlord's actual knowledge of such assignment, whereupon this Lease (including all renewal options, whether or not theretofore exercised by Tenant) shall cease and terminate on the date set forth in Landlord's Recapture Notice as though such date were the date herein originally fixed for the expiration of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months Tenant and every assignee or occupant of the fixed rent then in effect; and
(i) Tenant covenants and agrees thatDemised Premises claiming by, notwithstanding any assignment and/or the acceptance of rent under or additional rent by Landlord from any assignee, through Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in surrender this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all possession of the conditions set forth Demised Premises to Landlord in the condition required pursuant to this Article 7 Lease and Landlord has approved (in writing) may thereafter re-let the proposed assigneeDemised Premises for Landlord's sole benefit. In addition to the foregoing, Tenant shall be released from said Obligations, effective Landlord may exercise all rights and remedies available to it upon the effective date occurrence of the assignment an event of default under this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 2 contracts
Samples: Lease Agreement (1 800 Flowers Com Inc), Lease Agreement (1 800 Flowers Com Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 7.1 The Tenant covenants and agreescovenants, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyit being agreed that (y) issuance by the Tenant of stock and/or the transfer of already-issued stock/partnership interest, involuntarilyin one or more transactions so as to transfer control or transfer 50% or more of an interest in the Tenant, other than through over-the-counter or national securities exchange transactions by operation of lawthose holding less than a 5% interest in the Tenant, or otherwise(z) sale or transfer of 25% or more of the assets of the Tenant in one or more transactions, other than in the ordinary course of business, shall, in either event, be deemed an assignment of this Lease), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant and the Tenant’s permitted subsidiaries, affiliates, sublessees and assigns, or for any purpose other than will, except as hereinbefore set forthpermitted under Article Thirty-five, or will be sublet, or offered or advertised for subletting; provided, however, that, if the Tenant is a corporation, (a) the assignment or transfer of this Lease, and the term and estate hereby granted, to any corporation into which the Tenant is merged or with which the Tenant is consolidated (such corporation being hereinafter in this Article called the “Assignee”) without the prior written consent of the Landlord in every case shall not be deemed to be prohibited hereby if, and any attempt thereat shall be void any of no force upon the express conditions that, (i) the primary purpose for such merger or effect. For consolidation is other than the purposes transfer of this Lease, (iii) the transfer or transferee or sale or sales surviving entity has a net worth of at least $400 million (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (iiU.S.), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlordmerger or consolidation, at least thirty (30) days prior the Assignee shall have executed and delivered to the effective date thereof, Landlord an assumption agreement in form and substance reasonably satisfactory to the Landlord wherein whereby the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease Assignee shall agree to be kept, observed personally bound by and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of upon all the covenants, agreements, terms, provisions and conditions contained set forth in this Lease and Guaranty on the part of the Tenant to be kept, observed or performed to the same extent as the Tenant, and performedwhereby the Assignee shall expressly agree that the provisions of this Article shall, notwithstanding such assignment or transfer, continue to be binding upon it with respect to all future assignments and transfers, and (b) the Landlord will consent to the Tenant permitting the Premises to be used and occupied for the purposes specified in, and subject to the provisions of, this Lease, by any subsidiary or affiliate of the Tenant, but only for so long as the occupant remains a subsidiary or affiliate of the Tenant, provided that (I) the Tenant provides reasonable evidence of the relationship of the subsidiary or affiliate to the Tenant, ("Obligation"II) in the Landlord’s reasonable judgment the subsidiary or affiliate is of a character and engaged in a business such as is in compliance with Section 1.3 and is otherwise in keeping with the standards in those respects for the Building and its occupancy and (III) it being understood that an entity shall only be a subsidiary or affiliate of the Tenant for purposes of this Section 7.1 if the Tenant or its subsidiary, parent or affiliate owns, directly or indirectly, 50% or more of each class of the stock of any corporation or equitable interest in any other business entity.
7.2 Without in any way suggesting permission for the Tenant to assign the Lease, if the Lease is nonetheless assigned by the order of a court or otherwise but not as permitted by Section 7.1 above, the Tenant shall pay to the Landlord fifty percent (50%) of any consideration received by the Tenant from an assignee (other than a Tenant Affiliate) for the assignment, net of brokerage commissions, legal fees, workletter payments and other costs incurred by the Tenant in connection therewith and not reimbursed by the assignee. The amounts to be paid to the Landlord under this Section shall be payable only out of amounts collected by the Tenant in connection with an assignment and shall be deemed forgiven if no assignment occurs.
7.3 The Landlord will, at the request of the Tenant, maintain listings on the Building directory of the names of the Tenant, its departments and its permitted sublessees, subsidiaries and affiliates occupying parts of the Premises, and the names of any of their officers or employees; provided, however, that if Tenant the number of names so listed shall timely have complied with all of not exceed 900. Without implying any right to do so, the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of the Tenant, whether on the doors or windows of the premisesPremises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Premises or to be deemed to be the written consent of the Landlord mentioned referred to in this Article 7Section 7.1, it being expressly understood that any such listing is a privilege extended by the Landlord revocable at will by written notice to the Tenant.
Appears in 2 contracts
Samples: Lease (Cowen Group, Inc.), Lease (Cowen Group, Inc.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other another corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or of any of Tenant's ’s covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's ’s liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's ’s consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's Xxxxxxxx’s waiver of performance of any obligation hereunder or Landlord's ’s failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's Xxxxxxxx’s prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of LandlordXxxxxxxx, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's Xxxxxxxx’s counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the conventscovenants, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "“Prime Lease" ” as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("“Obligation"”) provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 2 contracts
Samples: Commercial Lease, Commercial Lease
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not, whether voluntarily, involuntarily or by operation of law, without in each instance obtaining the prior consent of Landlord (which consent shall not be unreasonably withheld, delayed or conditioned, subject, however, to Landlord’s recapture right set forth herein), (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereof, will the demised premises or allow the same to be assigned, mortgaged, pledged, encumbered used or otherwise transferred (whether voluntarily, involuntarily, occupied by operation of lawanyone other than Tenant, or otherwise)(c) mortgage, and that neither pledge or encumber this Lease or all or part of the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this LeaseArticle 11, (i) the transfer, directly or indirectly, of a majority of any class of the issued and outstanding capital stock of any corporate tenant or subtenant, or the transfer of a majority of the total interest in any other entity (limited liability company, partnership or transferee otherwise) which is a tenant or sale subtenant, however accomplished, whether in a single transaction or sales (in either one or a series of transactions) related or unrelated transactions (including, without limitation, and by way of fifty (50%) percent or more example only, the transfer of a majority of the outstanding capital stock of Tenanta company which company owns 100% of a second tier company, if Tenant is a corporation or fifty (50%) percent or more which in turn owns 51% of the ownership interests outstanding capital stock of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (iicorporate tenant hereunder), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, (ii) a so-called “takeover” agreement (i.e. an agreement where another entity agrees to become responsible for all or a portion of Tenant’s obligations under this Lease without actually entering into an assignment or sublease) shall have no rightbe deemed a transfer of this Lease, (iii) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension without Landlord’s prior written consent of a sublease previously consented to by Landlord shall be deemed a new sublease. Tenant agrees to furnish to Landlord promptly after demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, is in violation of the provisions of this Section 11.01.
(a) The provisions of clauses (a), (b) and (c) of Section 11.0l hereof shall not apply to transactions entered into by Tenant with (and no consent of Landlord shall be entitledrequired hereunder nor shall Landlord have any recapture or profit-sharing rights with respect to) (i) an “affiliate” (as hereinafter defined) or (ii) a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant’s assets are transferred, to exercise any option contained provided (a) Tenant is not then in default under this Lease which may be exercised by Tenantbeyond the expiration of all applicable notice and cure periods hereunder, (b) such merger, consolidation or transfer of assets or change of control is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and (c) the assignee or successor entity has a net worth of at least $10,000,000.00.
(b) Notwithstanding anything to the contrary contained in For purposes of this Article 711, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with an “affiliate” means (i) the sale of all of the capital stock of Tenanta corporation controlled by, if controlling or under common control with Tenant is a (an “affiliated corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, ”) or (ii) a merger partnership or consolidation of joint venture or limited liability company in which Tenant into or with any other an affiliated corporation or business entity or (iii) the sale of all or substantially all owns at least 51% of the assets general partnership or joint venture interest or membership interest therein. Without limiting the generality of Tenantthe foregoing, assign this Lease, with Landlord's prior written consent which a corporation shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified deemed controlled by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord another entity unless at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord51% of each class of its outstanding capital stock is owned, at least thirty (30) days prior to the effective date thereofboth beneficially and of record, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantentity.
Appears in 2 contracts
Samples: Sublease Agreement (Scynexis Inc), Office Lease (Optimer Pharmaceuticals Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and case. In connection with any attempt thereat request by Tenant for such consent, Tenant shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shallsubmit to Landlord, in each instance referred to in the preceding clauses (i) and (ii)writing, be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with statement containing the name and business address of the proposed assignee, a counterpart of the proposed assignment agreementsuch information as to its financial responsibility and standing as Landlord may require, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenantsterms and provisions upon which the proposed transaction is to take place. Tenant shall reimburse Landlord promptly, agreementsas Additional Rent, terms, for reasonable legal and other expense incurred by Landlord in connection with any request by Tenant for any consent required under the provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this LeaseArticle. The listing of any name other than that of Tenant, whether on the doors of the premises, Demised Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Demised Premises or to be deemed to be the written consent of Landlord mentioned in this Article 7Article, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant. If this Lease be assigned, Landlord may at any time and from time to time, collect rent and other charges from the assignee, and apply the net amount collected to the Rent and other charges herein reserved, but no such collection shall be deemed a waiver of this covenant, or the acceptance of the assignee 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 shall not in any way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment. Tenant shall remain fully and primarily liable for all its obligations hereunder notwithstanding any assignment. Notwithstanding anything herein to the contrary, Tenant may assign this lease to an Affiliate, meaning, for purposes hereof, a corporation or other entity controlling, controlled by or under common control with Tenant. In addition, Tenant may, without Landlord’s consent, sublease any or all of the Demised Premises, and any so-called “subleasing profits” or subrents in excess of the rent reserved herein shall belong to Tenant. Landlord shall, upon request of Tenant, not unreasonably withhold its consent to a nondisturbance agreement for the benefit of any such subtenants.
Appears in 1 contract
Samples: Sublease (Fluidigm Corp)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to advertise, for a subtenant or an assignee, without, in each instance, obtaining the prior consent of Landlord, which consent, with respect to clause (d) only, shall not be used or occupiedunreasonably withheld, conditioned, or utilized for desk space or for mailing privileges or delayed, except as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord otherwise expressly provided in every case and any attempt thereat shall be void any of no force or effectthis Article 11. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, or other interests in any other entity shall have no rightbe deemed not to include the sale of such stock or other interests by persons or parties, through the "over-the-counter market" or through any recognized stock exchange or to employees, existing shareholders (i.e., shareholders as of the date hereof), their families, trusts for their benefit or entities controlled by any of them, (ii) a takeover agreement shall be deemed a transfer of this Lease, (iii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a material modification, amendment or extension of a sublease shall be deemed a sublease. Tenant shall pay to Landlord on demand, as additional rent any costs incurred by Landlord to review a proposed assignment or subletting including attorneys fees incurred by Landlord and in addition shall pay to Landlord with each request for its consent, a processing fee of $1,000.
(a) The provisions of Section 11.01 hereof shall not apply to transactions with an entity into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant's assets or capital stock are transferred (provided such merger or transfer is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee (which shall not be entitled, deemed for this purpose to exercise any option contained exclude a transfer of Tenant's capital stock) has a net worth at least equal to or in excess of the greater of seventy-five percent (75%) of (x) the net worth of Tenant immediately prior to such merger or transfer) or (y) the net worth of Tenant as of the date of this Lease which may be exercised by Tenantor, if Tenant is a partnership, with a successor partnership.
(b) Notwithstanding anything to the contrary contained in Section 11.06, Landlord shall not have the rights described therein, Section 11.06(f) shall not apply and the Tenant shall not be required to obtain Landlord's consent if Tenant desires to assign this Article 7, and so long as Tenant is not in default of any Lease or sublease all or a portion of the covenants, agreements, terms, provisions and conditions of this Lease on its part demised premises to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock an affiliate of Tenant, if Tenant is a corporation, or of all provided the use of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which demised premises shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with affected thereby and in any event that the name and business address use of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the demised premises shall be consistent with a first class office building, will not require a level of services than that required by Tenant and shall comply with the provisions of this Lease. As used only in this paragraph, the term "affiliate" shall mean an individual, partnership, corporation, unincorporated association or other entity controlling, controlled by or under common control with Tenant and for the purpose set forth purposes of the foregoing, "control" shall mean ownership of a majority of the legal and beneficial interest in Article 1 hereof;
(f) an executed duplicate originalsuch corporation or other entity, in form satisfactory together with the ability to Landlord for review by Landlord's counseldirect the management, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date affairs and operations thereof. Tenant will also deliver Except as hereinafter provided in this Paragraph (b), any transfer or cessation of control over any affiliate or subsidiary to Landlord, at least thirty which this Lease is assigned or to which space is sublet (30including by means of a transaction contemplated by paragraph (a) days prior to the effective date thereof, hereof) shall constitute an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions assignment of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment Article 11 shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions apply other than Tenant's rights contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to TenantSection 11.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant Sublessee covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease Sublease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesSublease Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of TenantSublessee, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than TenantSublessee, or for any use or purpose other than as hereinbefore set forthpermitted hereunder, or will be sublet, or offered or advertised for subletting, without the prior written consent of Sublessor and Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Leasecase, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written which consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
. Sublessor's consent shall not be considered unreasonably withheld if: (c1) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart transferee's financial condition is unacceptable in the reasonable judgment of Sublessor; (2) the proposed assignment agreement, and satisfactory information with respect to transferee's business is not suitable for the nature and character of Building considering the business of the other tenants and the Building's prestige or would result in a violation of an exclusive right granted to another tenant in the Building; (3) the proposed assignee together with current financial information use is [substantially] different than the Permitted Use in the reasonable judgment of Sublessor; (4) the proposed transferee is a government agency or occupant of the BioSquare Project (unless the proposed transferee is the Sublessor, pursuant to a proposed Sub-Sublease having the same terms and conditions as this Sublease); (5) Sublessee is in default at the time of such request or effective date of any transfer; or (6) any portion of the Building or Sublease Premises would become subject to additional or different governmental laws or regulations as consequence of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, transfer and/or the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement transferee's use and is of a character and reputation, and engaged in a business, which is in keeping with the standards occupancy of the Building;
(e) Sublease Premises. Sublessee acknowledges that the premises shall foregoing is not intended to be used only an exclusive list of the reasons for which Sublessor may reasonably withhold its consent to a proposed transfer. Any attempted transfer in violation of the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, terms of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlordthis Section shall, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignmentSublessor's option, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate void. Consent by Sublessor to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent one or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, more transfers shall not operate as a waiver of Sublessor's rights as to vest any right or interest in this Lease or in subsequent transfers. In addition, Sublessee shall not, without Sublessor's consent, publicly advertise the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that proposed rental rate for any such listing is a privilege extended by Landlord revocable at will by written notice to Tenanttransfer.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 36.1 Tenant expressly covenants and agreesagrees that it shall not, for Tenant and its successorsdoes not have the right or power to, assigns and legal representativesassign, that neither mortgage, pledge, encumber, hypothecate or otherwise transfer this Lease nor the term and estate hereby grantedor any interest of Tenant herein, nor sublet all or any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered the Demised Premises or otherwise transferred (whether voluntarily, involuntarily, by operation of law, suffer or otherwise), and that neither permit the premises, nor Demised Premises or any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted thereof to be used or occupied, or utilized occupied by others (whether for desk space or for space, mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be subletotherwise), without the prior written consent of Landlord in every case and each instance.
36.2 If Tenant shall at any attempt thereat time or times during the term of this Lease desire to assign this Lease or sublet all or any part of the Demised Premises, Tenant shall give notice thereof to Landlord which notice shall be void deemed an offer from Tenant to Landlord whereby Landlord shall have the option to terminate this Lease (as to a sublease of less than all or substantially all of the Demised Premises, to terminate this Lease only as to the portion of the Demised Premises which Tenant desires to sublet). Said option may be exercised by Landlord by notice to Tenant at any of no force or effecttime within forty-five (45) days after the aforesaid notice has been given by Tenant to Landlord and during such forty-five (45) day period Tenant shall not assign this Lease nor sublet such space to any person. For the purposes of If Landlord exercises its option to terminate this Lease, this Lease shall end and expire on the date set forth in Landlord's notice, which date (ithe "Surrender Date") shall be the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more last day of the capital stock calendar month in which occurs the date which is one hundred twenty (120) days after the date of Landlord's notice, and the fixed rent and additional rent hereunder shall be paid and apportioned to such date.
36.3 If Landlord exercises its option to terminate this Lease pursuant to Section 36.2, Landlord shall be free to, and shall have no liability to Tenant if Landlord should, lease the Demised Premises (or any part thereof) to Tenant's prospective assignee or subtenant. In the event of such surrender by Tenant of a portion of the Demised Premises, effective as of the date immediately following the Surrender Date, the fixed rent payable by Tenant under this Lease shall be reduced by an amount equal to that portion of the fixed rent payable under this Lease which is allocable to the space so surrendered and the additional rent payable by Tenant under this Lease shall be equitably adjusted, If the entire Demised Premises be so surrendered by Tenant, if Tenant is a corporation or fifty (50%) percent or more this Lease shall be canceled and terminated as of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or Surrender Date with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) same force and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord effect as herein set forth. If this Lease be assigned or if the premises Surrender Date were the date herein specified for the expiration of the full term of Lease. In the event of such surrender by Tenant of a portion of the Demised Premises, any changes, improvements and alterations to the space constituting the Demised Premises after the Surrender Date (i.e., the space not so surrendered by Tenant) or any part thereof (including, but not limited to, the erection of a demising wall to separate the space constituting the Demised Premises after the Surrender Date from the space so surrendered) made necessary or desirable by sublet or occupied reason of such surrender shall be made by anybody other than Landlord at Tenant's expense. Tenant covenants and agrees that, in the event of such surrender by Tenant of a portion of the Demised Premises, Tenant, Landlord mayat Tenant's expense, after default by Tenantshall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such portion of the Demised Premises so surrendered, collect rent from permit the assignee, subtenant occupant or occupantoccupants of such portion the use of the core facilities on said floor, and apply permit on said floor reasonably appropriate directional signs for each occupant or occupants and appropriate designations in the net amount collected to passenger cabs serving said floor. In the rent herein reserved, but no event of any such assignment, subletting, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance surrender by Tenant of the Demised Premises or a portion thereof, Landlord and Tenant shall, at the request of either party, execute and deliver an agreement in recordable form to the effect hereinbefore stated.
36.4 In the event Landlord does not exercise or timely exercise the option referred to in Section 36.2 hereof, Landlord covenants not to unreasonably withhold or delay its consent to such proposed assignment or subletting by Tenant of such space to the proposed assignee or subtenant on said covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease the notice to Landlord referred to in Section 36.2, provided, however, that Landlord shall not in any event be assigned obligated to consent to any such proposed assignment or if subletting unless all or any portion of the premises be sublet, (a) the proposed assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant subtenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or financial standing and (ii) engaged in a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged the premises will be used in a business, manner which is in keeping with the then standards of the Building and the proposed assignment or subletting does not violate any negative covenants as to use contained in any other lease made between Landlord and other tenant(s) of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Lease (Merit Behavioral Care Corp)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests interest of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's ’s covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant subtenant, or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's ’s liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's ’s consent to such assignment nor shall Tenant at any time be released, relieved or discharged of by any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's ’s waiver of performance of any obligation hereunder or Landlord's ’s failure to enforce any obligation set forth in this Lease. If this Lease be is being assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or or
(ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's ’s prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Commercial Lease
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01 Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case and any attempt thereat shall be void any of no force or effectthis Article 11. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall have no rightbe deemed not to include 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, (ii) a takeover agreement shall be deemed a transfer of this Lease, (iii) any person or legal representative of Tenant, to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension of a sublease shall be deemed a sublease. Notwithstanding the foregoing, the provisions of this Section 11.01 shall not be entitled, apply to exercise any option contained in this Lease which may be exercised by an initial public offering of the stock of Tenant.
11.02 The provisions of Section 11.01 hereof shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant’s assets are transferred (b) Notwithstanding anything to provided such merger or transfer of assets is for a good business purpose and not principally for the contrary contained in this Article 7purpose of transferring the leasehold estate created hereby, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with provided that (i) the sale successor to Tenant has a net worth computed in accordance with generally accepted accounting principles at least equal to the greater of all (1) the net worth of the capital stock of TenantTenant immediately prior to such merger, if Tenant is a corporationconsolidation or transfer, or (2) the net worth of all Tenant herein named on the date of this Lease, and (ii) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord on or before the ownership interests earlier of Tenant, if Tenant is a partnership(i) the public announcement of such transaction, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or ten (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (3010) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of any such assignmenttransaction. As used herein, the term “Tenant’s Affiliate” shall mean a corporation or other legal entity controlling, controlled by or under common control with Tenant. For purposes of this Section 11.02, the term “control” shall mean, in the case of a corporation, ownership or voting control, directly or indirectly, of at least fifty percent (50%) of all the voting stock, and in case of a joint venture or partnership or similar entity, ownership, directly or indirectly of at least fifty percent (50%) of all the general or other partnership (or similar) interests therein. The use and occupancy of space within the demised premises by Tenant’s Affiliates in accordance with this Lease shall be jointly permitted without same being deemed an assignment of this Lease or a sublease of the demised premises provided Tenant shall give Landlord notice of such use and severally liable such Tenant’s Affiliates shall use the demised premises only for purposes permitted under this Lease and such occupancy shall be consistent with the performance continued character and quality of the Building as a first-class office building. Any subsequent transfer of capital stock or partnership or other interests in a Tenant’s Affiliate or other transaction whereby a Tenant’s Affiliate ceases to be a Tenant’s Affiliate as defined herein, shall constitute an assignment to which all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name 11 other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, this Section 11.02 shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantapply.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 15.1. Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 2, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case and any attempt thereat this Article 15.
15.2. The provisions of Section 15.1 hereof shall be void any of no force not apply to transactions with a corporation into or effect. For the purposes of this Lease, (i) the transfer with which Tenant is merged or transferee consolidated or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock with an entity to which substantially all of Tenant's assets are transferred or, if Tenant is a corporation or fifty (50%) percent or more partnership, with a successor partnership, nor shall the provisions of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (ia) and (ii)b) of Section 15.1 apply to transactions with an entity which controls or is controlled by Tenant or is under common control with Tenant.
15.3. Any assignment or transfer, whether made with Landlord's consent as required by Section 15.1 or without Landlord's consent pursuant to Section 15.2, shall be deemed made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to be an assignment Landlord a recordable agreement, in form and substance reasonably satisfactory to Landlord, whereby the assignee shall assume the obligations and performance of this Lease requiring and agree to be personally bound by and upon all of the prior written consent covenants, agreements, terms, provisions and conditions hereof on the part of Landlord as herein set forthTenant to be performed or observed and whereby the assignee shall agree that the provisions of Section 15.1 hereof shall, notwithstanding such an assignment or transfer, continue to be binding upon it in the future. If Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantLease, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or notwithstanding the acceptance of fixed annual rent by Landlord from an assignee or transferee or any other party, Tenant shall remain fully liable for the assignee, subtenant or occupant as Tenant, or a release payment of Tenant as sub-lessor or assignor from the further fixed annual rent due and to become due under this Lease and for the performance by Tenant of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder Tenant to be kept, performed or observed.
15.4. The liability of Tenant, and the due performance of this Lease on Tenant's liability part, shall not be discharged, released or impaired in any respect by an agreement or stipulation made by Landlord or any grantee or assignee, by way of mortgage, or otherwise, of Landlord, extending the time of, or modifying any of the obligations of this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease, which shall remain in full force and effect and Tenant shall continue liable hereunder. If any such agreement or modification operates to increase the obligations of a tenant under this Lease, the liability under this Section 15.4 of the tenant named in the event Lease or any of an assignmentits successors in interest (unless such party shall have expressly consented in writing to such agreement or modification), shall continue to be no greater than if such agreement or modification had not at been made. To charge Tenant named in this Lease and its successors in interest, no demand or notice of any time default shall be releasedrequired, relieved Tenant and each of its successors in interest hereby expressly waives any such demand or discharged by reason notice.
15.5. Within fifteen (15) business days of Landlord's receipt from Tenant of a request to assign or sublet, Landlord shall either consent to or disapprove of such request to permit an assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion a subletting of the premises be sublet, the assignee whole or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any a part of the covenants, agreements, terms, provisions and conditions of this Lease on its part demised premises (such consent not to be keptunreasonably withheld), observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided thatprovided:
(ca) Tenant shall furnish Landlord with the name and business address of the proposed subtenant or assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business proposed subtenant's or assignee's business, or activities, such references as are reasonably available to Tenant, and an executed counterpart of the sublease or assignment agreement;
(b) The proposed subtenant or assignee is a reputable party;
(c) The nature and character of the proposed assignee together with current financial information subtenant or assignee, its business or activities and intended use of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which demised premises is in keeping with the standards of the Building and the floor or floors on which the demised premises are located;
(d) The proposed subtenant or assignee is not then an occupant of any part of the Building (other than an existing subtenant of Tenant in the Building) unless, based on Landlord's good faith Judgment, Landlord does not or will not have in the six (6) months following such request, comparable space available in the Building for leasing and if Landlord does have such comparable space available, Tenant shall not deal with any such occupant until Landlord shall have had the opportunity to market such comparable space for at least six (6) months following the request;
(e) Any such subletting or assignment shall not impose any costs on Landlord except that this condition shall not apply if Tenant shall reimburse Landlord for all of such costs. All costs incurred with respect to providing reasonably appropriate means of ingress and egress from the premises shall sublet space shall, subject to the provisions of Article 8 with respect to alterations, installations, additions or improvements, be used only for the purpose set forth in Article 1 hereofborne by Tenant;
(f) an executed duplicate original, in form satisfactory Each sublease shall specifically state that (i) it is subject to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the terms, covenants, agreements, termsprovisions, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease, (ii) the subtenant or assignee, as the case may be, will not have the right to a further assignment thereof or sublease or assignment thereunder, or to allow the demised premises to be used by others, without the consent of Landlord in each instance, which consent shall not be unreasonably withheld or delayed, (iii) a consent by Landlord thereto shall not be deemed or construed to modify, amend or affect the terms and provisions of this Lease, or Tenant's obligations hereunder, which shall continue to apply to the premises involved, and the occupants thereof, as if the sublease or assignment had not been made, (iv) if Tenant defaults in the payment of any rent, Landlord is authorized to collect any rents due or accruing from any assignee, subtenant or other occupant of the demised premises and to apply the net amounts collected to the fixed annual rent and additional rent reserved herein, (v) the receipt by Landlord of any amounts from an assignee or subtenant, or other occupant of any part of the demised premises shall not be deemed or construed as releasing Tenant from Tenant's obligations hereunder or the acceptance of that party as a direct tenant;
(g) each assignment If a subletting is involved, it shall be subject and subordinate not have the effect (or give the utility company serving the Building with electricity cause to all claim) that Landlord may not provide the demised premises, or any part thereof, or any part thereof, or any other rentable portion of the covenantsBuilding, agreementswith electricity on a "rent inclusion basis", termsprovided, provisions and conditions of however, that this Lease and clause (g) shall not be applicable in the "Prime Lease" as such term event Tenant is hereinafter defined; andobtaining electric current directly from the public utility company servicing the Building;
(h) Assignee Tenant shall deposit together with Landlord an amount equal requesting Landlord's consent hereunder with respect to ( any under leases (entered into by Tenant's subtenants) months of all or part of the fixed rent then in effectdemised premises (but not with respect to any sublease between Tenant and its subtenant), have paid Landlord's reasonable out-of- pocket costs and expenses to review the requested consent; and
(i) Tenant covenants and agrees thatThe proposed subtenant or assignee is not an (i) employment or recruitment agency; (ii) school, notwithstanding college, university or educational institution whether or not for profit; (iii) a government or any assignment and/or the acceptance of rent subdivision or additional rent by Landlord from any assignee, agency thereof.
15.6. If Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or assign its interest in this Lease or sublet all or any portion of the demised premises, in accordance with this Lease, other than an assignment or sublease contemplated by Section 15.2 hereof, then (i) if an assignment is involved, Tenant shall pay Landlord, as and when received, fifty (50%) percent of any consideration received by Tenant in connection with such assignment, after deducting reasonable brokerage commissions, reasonable advertising fees, reasonable legal fees, rent concessions and rent abatements (at Tenant's then rental costs), Tenant's rental costs under the Lease allocable to any portion of the demised premises during the period when such space is vacant while Tenant is intending to sublet same, the unamortized cost of any improvements allocable to the space involved amortized over the remaining term of this Lease, and the costs of any improvements incurred by Tenant to prepare the demised premises for such assignee's occupancy and (ii) if a subletting is involved, and the rents received by Tenant under a sublease shall exceed the rents reserved hereunder that are allocable to the premises or sublet, the excess shall be applied by Tenant to reasonable brokerage commissions, reasonable advertising fees, reasonable legal fees, rent concessions and rent abatements (at Tenant's then rental costs), the unamortized cost of any improvements allocable to the space involved amortized on a fifteen year straight line basis, and the costs of any improvements incurred by Tenant in connection with and allocable to the subletting, and fifty (50%) percent of the balance of such excess shall be deemed paid by Tenant to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantas and when received.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not without, in each instance, obtaining the prior consent of Landlord, (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereofthe demised premises or allow the same to be used or occupied by others or in violation of Article 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation encumber this Lease or all or part of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant for all or occupied, or utilized for desk space part of the demised premises or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent an assignee of Landlord in every case and any attempt thereat shall be void any of no force or effectthis Lease. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant or transferee subtenant, or sale the transfer of a majority of the total interest in any other entity (partnership or sales (otherwise) which is a tenant or subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation takeover agreement shall be deemed a transfer of Tenant into or with any other corporation or business entity or this Lease, (iii) the sale of all any person or substantially all of the assets legal representative of Tenant, assign to whom Tenant's interest under this LeaseLease passes by operation of law, with or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension without Landlord's prior written consent of a sublease previously consented to by Landlord shall be deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, shall have violated the provisions of this Section 11.01.
11.02. The provisions of clauses (a) and (b) of Section 11.01 hereof shall not apply to transactions entered into by Tenant with a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant's assets are transferred, provided (a) such merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and (b) the assignee or successor entity has a net worth at least equal to or in excess of the net worth of Tenant either (i) immediately prior to such merger, consolidation or transfer or (ii) as of the date hereof, whichever is greater.
11.03. Any assignment or transfer, whether made with Landlord's consent as required by Section 11.01 or without Landlord's consent pursuant to Section 11.02, shall not be unreasonably withheld or delayedeffective unless and until (a) the assignee shall execute, provided that:
(c) Tenant shall furnish acknowledge and deliver to Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment recordable agreement, in form and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, substance reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein whereby the assignee agrees shall (i) assume the obligations and performance of this Lease and agree to assume be personally bound by all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty hereof on the part of Tenant to be kept, performed or observed on and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon after the effective date of any such assignment and (ii) agree that the assignment provisions of this Lease. The listing Article 11 shall, notwithstanding such assignment or transfer, continue to be binding upon it in the future, and (b) in the case of any name other than that an assignment or transfer pursuant to Section 11.02 Tenant or its successor shall have delivered to Landlord financial statements certified by a reputable firm of Tenant, whether on the doors certified public accountants evidencing satisfaction of the premises, on the Building directory, or otherwise, shall not operate net worth requirements referred to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to TenantSection 11.
Appears in 1 contract
Samples: Lease Agreement (Labranche & Co Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not without, in each instance, obtaining the prior consent of Landlord, which consent shall not be unreasonably withheld or delayed, (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereofthe demised premises or allow the same to be used or occupied by others or in violation of Article 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation encumber this Lease or all or part of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant for all or occupied, or utilized for desk space part of the demised premises or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent an assignee of Landlord in every case and any attempt thereat shall be void any of no force or effectthis Lease. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant or transferee subtenant, or sale the transfer of a majority of the total interest in any other entity (partnership or sales (otherwise) which is a tenant or subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, shall have no rightprovided, and however, that the foregoing shall not be entitledapply to a public offering of Tenant's securities on a recognized national market, or to exercise any option contained in this Lease transfer of shares which may be exercised by Tenant.
(b) Notwithstanding anything are publically traded, or to a sale of shares to one acquirer, or to the contrary contained in this Article 7, and so long as Tenant is not in default transfer of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, shares by a share owner in connection with (i) the sale of all of the capital stock of Tenantsuch share owner's estate planning, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation takeover agreement shall be deemed a transfer of Tenant into or with any other corporation or business entity or this Lease, (iii) the sale of all any person or substantially all of the assets legal representative of Tenant, assign to whom Tenant's interest under this LeaseLease passes by operation of law, with or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension without Landlord's prior written consent which of a sublease previously consented to by Landlord shall be deemed a new sublease, unless such extension was contained in the sublease previously approved by Landlord, but with a term not beyond the Expiration Date. Tenant agrees to furnish to Landlord upon demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, shall have violated the provisions of this Section 11.01.
11.02. The provisions of clauses (a), (b) and (d) of Section 11.01 and the provisions of Sections 11.05 and 11.06(e) hereof shall not apply to (and Landlord's consent shall not be unreasonably withheld required for, but notice shall nonetheless be given to Landlord), transactions entered into by Tenant with a Tenant Affiliate. "Tenant Affiliate" shall mean (i) an entity into which the Tenant is merged or delayedconsolidated or to which Tenant sells substantially all its assets, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assigneesuch merger, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) consolidation or asset sale results in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations successor entity being fully liable under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount successor entity having a net worth at least equal to ( ) months or in excess of the fixed rent then in effect; and
(i) net worth of Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment as of the rent and additional rent due and to become due hereunder date hereof; (ii) an entity which controls, is controlled by or is under common control with Tenant (the term "control" meaning ownership of not less than 25% of the outstanding voting interests of such entity); or (iii) a partnership in which and for the performance so long as Tenant or a Tenant Affiliate shall be a general partner and of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of which Tenant to be kept, observed and performed, ("Obligation"or one or more Tenant Affiliates) provided, however, that if Tenant shall timely have complied with all own not less than 25% of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantlegal equitable interest.
Appears in 1 contract
Samples: Sublease Agreement (Idealab)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant Lessee covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, by this Lease granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of TenantLessee, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than TenantLessee in its Use of the Demised Premises, or for any use or purpose other than as hereinbefore set forthUse of the Demised Premises, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord Lessor in every case and any attempt thereat shall case, which consent will not be void any of no force or effectunreasonably withheld. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (of a controlling interest in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), constituting Lessee shall be deemed to be an assignment of this Lease requiring Lease. Lessor agrees that Lessor will not unreasonably withhold its consent to an assignment by the prior written consent Lessee of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of TenantLessee's covenants contained in this Article 7 or elsewhere interest in this Lease or for security purposes in connection with a financing of Lessee's improvements to the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to Demised Premises; provided such assignment nor shall Tenant at any time be released, relieved or discharged is junior to the interests of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth Lessor in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, respects and shall not be entitled, encumber the real estate of which the Demised Premises are a part. In connection with any request by Lessee for such consent or intention by Lessee to exercise any option contained make an assignment in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to accordance with the contrary contained in this Article 7, and so long as Tenant is not in default provisions of any of the covenants, agreements, terms, provisions and conditions second paragraph of this Lease on its part Article, Lessee shall submit to be kept, observed and performed, Tenant mayLessor, in connection with (i) the sale of all of the capital stock of Tenantwriting, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with statement containing the name and business address of the proposed assignee, a counterpart of the proposed assignment agreementsubtenant or other third party, such information as to its financial responsibility and standing as Lessor may require, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenantsterms and provisions upon which the proposed transaction is to take place. Lessee shall reimburse Lessor promptly, agreementsas Additional Rent, terms, for reasonable legal and other expense incurred by Lessor in connection with any request by Lessee for any consent required under the provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this LeaseArticle. The listing of any name other than that of TenantLessee, whether on the doors of the premises, Demised Premises or on the Building directoryBuilding, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Demised Premises or to be deemed to be the written consent of Landlord Lessor mentioned in this Article 7Article, it being expressly understood that any such listing is a privilege extended by Landlord Lessor revocable at will by written notice to TenantLessee. If this Lease be assigned, or if the Demised Premises or any part thereof be sublet or occupied (other than Use of the Demised Premises by Lessee) by anybody other than Lessee, Lessor may at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent and other charges reserved in this Lease, but no such assignment 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 Lessee from the further performance by Lessee of covenants on the part of Lessee contained in this Lease. The consent by Lessor to an assignment or subletting or occupancy shall not in any way be construed to relieve Lessee from obtaining the express consent in writing of Lessor to any further assignment or subletting or occupancy. Notwithstanding any consent by Lessor, no assignment or subletting of the Demised Premises by Lessee shall relieve Lessee from Lessee's obligation to pay rent to Lessor or from Lessee's obligation to observe or perform any and all of the terms, provisions, covenants and conditions of this Lease.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agreesA. Except as otherwise expressly provided in this Article 48, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof nor the interest of thereofTenant hereunder or in any sublease or the rentals thereunder, will shall, by operation of law or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyby Tenant, involuntarily, by operation of law, Tenant’s legal representatives or otherwise), successors in interest and that neither the premises, Demised Premises nor any part thereof, will thereof shall be encumbered in any manner by reason of any act or omission on the part of TenantTenant or anyone claiming under or through Tenant or shall be sublet or be used, or will be used or occupied, or permitted to be used or occupied, occupied or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord Owner in every case and each instance. For purposes of this Article 48, (i) the issuance of interests in Tenant or any attempt thereat subtenant (whether stock, partnership interest or otherwise) to any person or group of related persons, whether in a single transaction or a series of related or unrelated transactions, in such quantities that after such issuance such person or group shall have control (as defined in Section 48C) of Tenant or such subtenant, shall be void deemed an assignment of this Lease or such sublease, as the case may be, if such issuance of interests is intended to circumvent the restrictions on assignment and subletting set forth herein and does not have a valid primary independent business purpose, (ii) a transfer of more than 50% in interest of Tenant or any subtenant (whether stock, partnership interest or otherwise) by any party or parties in interest whether in a single transaction or a series of no force related or effect. For unrelated transactions shall be deemed an assignment of this Lease, or such sublease, as the purposes case may be, if such transfer is intended to circumvent the restriction on assignment and subletting set forth herein and does not have a valid primary independent business purpose except that the transfer of the outstanding capital stock of any corporate Tenant, or subtenant, by persons or parties (other than persons or parties owning 5% or more of the voting stock of such corporation) through the “over-the-counter” market or any recognized national securities exchange, shall not be included in the calculation of such 50%, (iii) a “take-over agreement” pursuant to which any person or persons shall agree to assume the obligations of Tenant hereunder in consideration of Tenant (or any affiliate of Tenant) leasing space in another building, shall be deemed an assignment of this Lease, (iiv) the transfer any person or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock legal representative of Tenant, if to whom Tenant’s interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 48, and (v) any modification or amendment of a sublease that changes a material term thereof, or any extension or assignment of a sublease, shall each be deemed a sublease. Any assignment, sublease, mortgage, pledge, encumbrance or transfer by Tenant is a corporation or fifty (50%) percent or more in contravention of this Article 48 shall be void. Notwithstanding the generality of the ownership interests of Tenantforegoing, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an no assignment of a sublease or sub-subletting in violation of this Section 48A shall be a default under this Lease requiring so long as Tenant has commenced and is diligently pursuing commercially reasonable steps (at Tenant’s sole cost and expense) to enforce the prior written consent terms of Landlord as herein set forth. this Section 48A against the subtenant.
B. If this Lease shall be assigned assigned, whether or if not in violation of the premises terms of this Lease, Owner may collect rent from the assignee. If the Demised Premises or any part thereof by shall be sublet or shall be used or occupied by anybody other than Tenant, Landlord whether or not in violation of this Lease, Owner may, after default by Tenant and expiration of Tenant’s time to cure such default, if any, collect rent from the assignee, subtenant or occupant, and . In either event Owner may apply the net amount collected to the rent Fixed Annual Rent and Additional Rent herein reserved, but no such . The consent by Owner to an assignment, sublettingtransfer, occupancy encumbering or collection subletting pursuant to any provision of this Lease shall not in any way be deemed a waiver considered to relieve Tenant from obtaining the express prior consent of Owner to any other or any of Tenant's covenants contained in this Article 7 further assignment, transfer, encumbering or elsewhere subletting if same is required hereunder. References in this Lease to use or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of occupancy by anyone other than Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitledconstrued as limited to subtenants and those claiming under or through subtenants, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, but as including also licensees and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of others claiming under Tenant, if Tenant is a corporation, immediately or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Leaseremotely. The listing of any name other than that of Tenant, whether Tenant on the doors any door of the premises, Demised Premises or on any directory or in any elevator in the Building directoryBuilding, or otherwise, shall not operate to vest in the person so named any right or interest in this Lease or in the premises Demised Premises, or to be deemed to be the written constitute or serve as a substitute for, any consent of Landlord mentioned in Owner required under this Article 7Article, and it being expressly is understood that any such listing is (in the absence of such consent) shall constitute a privilege extended by Landlord Owner, revocable at Owner’s will by written notice to Tenant. Tenant agrees to pay to or reimburse Owner for all actual, reasonable out-of-pocket third party costs which may be incurred by Owner in connection with any proposed assignment of this Lease or any proposed subletting of the Demised Premises or any part thereof, including reasonable attorneys’ fees and disbursements and, if applicable, the cost of making investigations as to the acceptability of a proposed subtenant or assignee. Neither any assignment of 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 Owner from any person other than Tenant, nor any application of any such rent as provided in this Article, nor a direct dealing by Owner with any subtenant, occupant or assignee, shall under any circumstances be deemed a waiver of any of the provisions of this Article or, except as set forth in this Article 48, relieve, impair, release or discharge Tenant of its obligations fully to perform the terms of this Lease on Tenant’s part to be performed and Tenant shall remain fully and primarily liable therefor.
C. Tenant may, without Owner’s consent and without complying with Section 48F or Section 48G, permit any corporations or other business entities which control, are controlled by, or are under common control with Tenant (each herein referred to as a “related entity”) to use or sublet all or part of the Demised Premises for any of the purposes permitted to Tenant, or Tenant may assign this Lease to a related entity without Owner’s consent, subject in each case however to compliance with Tenant’s obligations under this Lease and provided that (i) Tenant shall not then be in default in the performance of any of its obligations under this Lease beyond applicable periods of notice and grace, (ii) prior to such use, subletting or assignment Tenant furnishes Owner with the name of any such related entity, together with a certification of Tenant, and such other proof as Owner may reasonably request, that such user, sublessee or assignee is a related entity of Tenant, (iii) such use, subletting or assignment has a valid primary independent business purpose and is not intended to circumvent the restrictions on assignment and subletting set forth herein and (iv) the term of any such use or subletting shall terminate if at any time the sublessee shall no longer be a related entity. Such use, subletting or assignment shall not 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 percent (50%) of all of the voting stock of such corporation or not less than fifty percent (50%) of all of the legal and equitable interest in any other business entities.
D. Tenant may, without Owner’s consent and without complying with Section 48F or Section 48G, assign or transfer its entire interest in this Lease and the leasehold estate hereby created to a successor entity of Tenant (as hereinafter defined), provided that Tenant shall not then be in default in the performance of any of its obligations under this Lease beyond applicable periods of notice and grace. A “successor entity”, as used in this Section, shall mean (i) an entity into which or with which Tenant, its successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions for the merger or consolidation of business or governmental entities, provided that by operation of law or by effective provisions contained in the instruments of merger or consolidation the obligations of the Tenant under this Lease are assumed by the entity surviving such merger or consolidation, (ii) an entity acquiring this Lease and the estate hereby granted and substantial other property and assets of Tenant, its corporate successors or assigns, and assuming substantial other liabilities of Tenant, its successors and assigns, including all obligations under this Lease, or (iii) any entity that purchases all or substantially all of the issued and outstanding shares of Tenant, or (iv) any successor to a successor entity becoming such by either of the methods described in subdivisions (i), (ii) and (iii) above, provided that, (a) such merger or consolidation, or such acquisition and assumption, or such purchase, as the case may be, is not principally for the purpose of transferring the leasehold estate created hereby, and (b) immediately after giving effect to any such merger or consolidation, or such acquisition and assumption, or such purchase, as the case may be, the entity surviving such merger or created by such consolidation or acquiring such shares or assets and assuming such liabilities, as the case may be, shall have a net worth (excluding goodwill), as determined in accordance with generally accepted accounting principles and certified to Owner by a reputable nationally-recognized independent certified public accounting firm having no less than twenty (20) partners, at least equal to those of Tenant immediately prior to such transaction. In addition, any entity that is then the Tenant may “go public” without same being deemed an assignment of this Lease.
E. No assignment made pursuant to Section 48D and no assignment otherwise consented to by Owner shall be valid unless, within twenty (20) days after the execution thereof, Tenant shall deliver to Owner a duplicate original instrument of assignment and assumption in form and substance reasonably satisfactory to Owner, duly executed by Tenant, and by the assignee, in which such assignee shall assume performance of all terms of this Lease on Tenant’s part to be performed.
(i) Notwithstanding anything contained in Sections 48A and 48B to the contrary, but subject to the rights of Tenant under Section 48C and 48D, in the event that at any time Tenant desires to sublet all or any part of the Demised Premises or to assign its interest in this Lease, Tenant:
(a) shall submit to Owner (x) in the case of a sublease, the name and address of the proposed subtenant and a reasonably detailed description of such person’s business (but if such subtenant has not yet been identified, Tenant shall submit such name, address and description to Owner promptly after such identification) and (y) in the case of an assignment, the name and address of the proposed assignee, a reasonably detailed description of such person’s business, reasonably detailed business and financial references for such person (including its most recent balance sheet and income statements certified by its chief financial officer or a certified public accountant) and any other business information reasonably requested by Owner (but if such assignee has not yet been identified, Tenant shall submit such name, address, description and references to Owner promptly after such identification);
(b) shall submit to Owner (1) either (x) a term sheet setting forth all the proposed terms of the proposed sublease or assignment, it being understood that Tenant may deliver such term sheet to Owner in advance of having identified a potential assignee or subtenant or (y) a conformed or photostatic copy of the proposed assignment or sublease, the effective date of which shall be at least thirty (30) days after the date of the giving of such notice and which shall be conditioned on Owner’s consent thereto, and (2) an agreement by Tenant to indemnify Owner against liability resulting from any claims that may be made against Owner by the proposed assignee or sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease, to the extent such claims are arising from the actions of Tenant;
(c) in the case of a proposed sublease that (whether individually or together with any other subleases then in effect or submitted to Owner for Owner’s consent) demises more than fifty percent (50%) of the Demised Premises (except if such subletting is permitted without Owner’s consent pursuant to Section 48C), shall be deemed to have granted Owner the option, to be exercised within thirty (30) days after receipt of all items to be submitted by Tenant pursuant to this Section 48F(i) (other than, if applicable, the name, address, description and references that Tenant is permitted, pursuant to Section 48F(i)(a), to submit after the initial submission of information), to terminate this Lease with respect to the space that is the subject of such proposed sublease upon the terms and conditions hereinafter set forth (provided that if Owner shall elect to terminate this Lease pursuant to this clause (c), then Tenant shall have the right, not later than five (5) Business Days after Owner’s termination notice, to retract its request for consent and this Lease shall continue in full force and effect);
(d) in the case of a proposed assignment of this Lease (except if such assignment is permitted without Owner’s consent pursuant to Section 48C or 48D), shall be deemed to have granted Owner the option, to be exercised within thirty (30) days after receipt of all items to be submitted by Tenant pursuant to this Section 48F(i) (other than, if applicable, the name, address, description and references that Tenant is permitted, pursuant to Section 48F(i)(a), to submit after the initial submission of information), to terminate this Lease upon the terms and conditions hereinafter set forth (provided that if Owner shall elect to terminate this Lease pursuant to this clause (d), then Tenant shall have the right, not later than five (5) Business Days after Owner’s termination notice, to retract its request for consent and this Lease shall continue in full force and effect); and
(e) shall not offer such space for assignment or subletting to anyone other than the proposed assignee or subtenant (unless no such proposed assignee or subtenant was identified and Tenant delivered a term sheet to Owner in advance of having identified a potential assignee or subtenant pursuant to Section 48F(i)(b)) until after thirty (30) days have elapsed after receipt by Owner of all items to be submitted by Tenant pursuant to this Section 48F(i).
Appears in 1 contract
Samples: Office Lease (Atari Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise provided herein, Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 5 hereof, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner or permit any lien to be filed against the Lease, the demised premises or the Building by reason of any act or omission on the part of Tenant, or will be used or occupied(d) publicly advertise, or permitted authorize a broker to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone advertise (other than Tenantlisting with brokers), for a subtenant or an assignee, if such advertisement states a rental rate for any purpose other than as hereinbefore the demised premises without, in each instance set forthforth in the foregoing clauses (a) through (d) of this Section 11.01, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case and this Article 11 (except that Tenant may continue to use any attempt thereat shall be void any of no force or effectadvertisement which was previously approved by Landlord). For the purposes of this LeaseArticle 11 and except as otherwise expressly permitted in Section 11.02 hereof, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall have no rightbe deemed not to include the sale or transfer of such stock by persons or parties through the "over-the-counter market" or through any recognized stock exchange, and shall not be entitled(ii) any person or legal representative of Tenant, to exercise any option contained in whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11; and (iii) a modification, amendment or extension of a sublease which may modifies (w) the use permitted thereunder, (x) the financial terms thereof, (y) the premises demised thereunder, or (z) the term thereof, shall be exercised by Tenantdeemed a sublease.
(ba) Notwithstanding anything The provisions of Sections 11.01, 11.05, 11.06, 11.07 and 11.08 hereof shall not apply to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions an assignment of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the a corporation or other entity into or with which Tenant is merged or consolidated or (ii) a person or an entity to which substantially all of Tenant's assets are transferred or to an entity to which all or substantially all of Tenant's stock is transferred (provided that such sale of stock is not for the principal purpose of transferring the leasehold estate hereunder), whether such transfer of stock and/or assets is by means of foreclosure or otherwise or by the exercise of any rights by any entity to which the stock and/or assets of Tenant are pledged, or (iii) any person or entity which shall acquire all or any portion of the assets of the Tenant named herein, or an Affiliate or Successor of the Tenant named herein, which are allocable to all or a portion of the on-going operations of the business then being conducted at the demised premises (whether or not any other assets of the Tenant named herein are also XXXX XXX XXXXXX/XXXXX - LEASE PT II acquired) or a person or entity who shall acquire the stock of the Tenant named herein allocable to such business (whether or not all of the capital stock of Tenant, if the Tenant named herein is a also acquired) (any corporation, entity, or person set forth in the foregoing clauses (i), (ii) and (iii) being herein called a "Successor"), or (iv) any corporation or other entity controlled by, which controls or which is under common control with, the Tenant named herein (herein called an "Affiliate") provided such merger, consolidation or transfer of all stock and/or assets set forth in the preceding clauses (i), (ii) and (iii) is for a valid business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and provided, further, that Tenant shall have delivered to Landlord at least ten (10) days (but not more than twenty-five (25) days) prior to the effective date of any such transaction: (1) a certified statement (the "EBITDA Certificate") from the chief financial officer of such successor or assignee, and (2) "Support Documentation," as hereinafter defined. The EBITDA Certificate and Support Documentation shall evidence that with respect to the twelve (12) month period ending with the month next preceding the month in which occurs the date on which Tenant has delivered to Landlord the items specified in clauses (1) and (2) of the ownership interests foregoing sentence (such 12-month period being herein called the "Fiscal Year"):
(i) in the case of a sale of Tenant's assets, if Tenant a merger or a consolidation or other combination, EBITDA (Earnings Before Interest, Taxes, Depreciation, Amortization and any other non-cash charges, including, but not limited to, executive options) for the Fiscal Year for the combined business (i.e., the EBITDA of such successor or assignee combined with the EBITDA relating to the business acquired and assumed from Tenant) is a partnershipat least 1.35 times required annual debt service for the Fiscal Year for such combined business (i.e., the required annual debt service of such successor or assignee combined with the required annual debt service relating to the business assumed or acquired from Tenant), or (ii) in the case of a merger or consolidation sale of Tenant's stock, EBITDA for the Fiscal Year for Tenant is at least 1.35 times the required annual debt service of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of after such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter definedstock sale; and
(hB) Assignee shall deposit with Landlord an amount equal to ( the total debt (including subordinate debt) months for such combined business on the last day of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable Fiscal Year for the payment of the rent and additional rent due and to become due hereunder and Fiscal Year does not exceed six (6) times EBITDA for such combined business for the performance of all the covenantsFiscal Year (or, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be case of a sale of stock, after such stock sale, the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to total debt (including subordinate debt) does not exceed six (6) times EBITDA for Tenant).
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Except as otherwise provided for herein, Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither shall not by operation of law or otherwise (a) assign or otherwise transfer this Lease nor or the term Term and estate hereby granted, nor (b) sublet the Premises or any part hereof of thereofthereof or allow the same to be used or occupied by others, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor Premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of TenantTenant or (d) advertise, or will be used authorize a broker to advertise, for a subtenant or occupiedassignee, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or the price for any purpose other than as hereinbefore set forth, or will be sublet, without portion of the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effectPremises. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, or the transfer of control in either one any limited partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, (ii) of fifty an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (50%iii) percent any person or more of the capital stock legal representative of Tenant, if to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension of a sublease shall be deemed a sublease.
(b) Notwithstanding anything to the contrary contained herein, any transaction: (i) with a corporation into, or with which, Tenant is a corporation merged or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership consolidated; or (ii) a merger with an entity to which all, or consolidation substantially all, of Tenant's assets are transferred; or (iii) with an entity that controls, or is controlled by Tenant or is under common control with Tenant; or (vi) involving the sale or transfer of the stock of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), over a nationally recognized public stock exchange; shall not be deemed to be an assignment for purposes of this Lease requiring and shall not require Landlord's prior consent, except that with respect to any transaction pursuant to which Tenant is merged or consolidated with another entity, the same shall not require Landlord's consent provided that: (i) if such merger or consolidation occurs during the first five (5) years of the Term the entity resulting from such merger or consolidation shall have a net worth of at least One Hundred Million Dollars ($100,000,000.00); and (ii) if such merger or consolidation occurs after the first five (5) years of the Term, the entity resulting from such merger or consolidation shall have a net worth of at least Forty Million Dollars ($40,000,000.00). In the event that the net worth of Tenant following any such merger or consolidation occurring during the first five (5) years of the Term is less than One Hundred Million Dollars ($100,000,000.00), Landlord's prior written consent shall not be required for any such merger or consolidation provided that Tenant delivers to Landlord a letter of credit, in the amount of One Million Three Hundred Thirty Three Thousand Dollars, to be held by Landlord as herein set forthadditional security in accordance with the provision of Article 35 hereof. If Such letter of credit may be reduced by Tenant to Six Hundred Sixty Seven Thousand Dollars following the fifth anniversary of the Commencement Date. In the event that the net worth of Tenant following any merger or consolidation occurring after the first five (5) years of the Term is less than Forty Million Dollars ($40,000,000.00), Landlord's prior consent for such merger or consolidation shall not be required, provided that Tenant delivers to Landlord a letter of credit, in the amount of Six Hundred Sixty Seven Thousand Dollars to be held by Landlord as additional security in accordance with the provisions of Articles 35 hereof. Nothing in this Lease be assigned or if the premises Section 11(b) shall permit Tenant or any part thereof by sublet successor to use or occupied by anybody occupy the Premises for any purpose other than Tenantthe purposes stated in Article 5 hereof.
(c) Any assignment or transfer, Landlord may, after default whether made with Landlord's consent as required by Tenant, collect rent from the assignee, subtenant Section 11(a) or occupantwithout Landlord's consent pursuant to this Article shall be made only if, and apply shall not be effective until, the net amount collected assignee shall execute, acknowledge and deliver to Landlord a recordable agreement, in the rent herein reservedform annexed hereto as Exhibit B. Tenant covenants that, but no such assignmentnotwithstanding any assignment or transfer, sublettingwhether or not in violation of the provisions of this Lease, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or and notwithstanding the acceptance of rent by Landlord from an assignee or transferee or any other party, Tenant shall remain fully and primarily liable for the assignee, subtenant or occupant as Tenant, or a release payment of Tenant as sub-lessor or assignor from the further rent due and to become due under this Lease and for the performance by Tenant of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder Tenant to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(bd) Notwithstanding anything to the contrary contained in this Article 7The liability of Tenant, and so long as the due performance by Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease obligations on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign performed under this Lease, with Landlord's prior written consent which shall not be discharged, released or impaired in any respect by an agreement or stipulation made by Landlord or any grantee or assignee of Landlord, by way of mortgage, or otherwise, extending the time of, or modifying any of the obligations contained in this Lease, or by any waiver or failure of Landlord to enforce any of the obligations on Tenant's part to be performed under this Lease, and Tenant shall continue to be liable hereunder. If any such agreement or modification operates to increase the obligations of a tenant under this Lease, the liability under this Section 11.(d) of Tenant named in this Lease or any of its successors in interest (unless such party shall have expressly consented in writing to such agreement or modification) shall continue to be no greater than if such agreement or modification had not been made.
(e) Landlord shall not withhold or delay its consent unreasonably withheld to an assignment of this Lease or delayed, provided thata subletting of the whole or a part of the Premises so long as:
(ci) Tenant shall furnish Landlord with the name and business address of the proposed subtenant or assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with subtenant's or assignee's business, or activities and such references and current financial information of the proposed assigned certified with respect to net worth, credit and financial responsibility as are reasonably requested by a certified public accountant and references, including banking references, satisfactory to Landlord;
(dii) in the judgment of proposed subtenant or assignee is a reputable party whose financial net worth, credit and financial responsibility is, considering the responsibilities involved, reasonably satisfactory to Landlord, the proposed assignee is financially responsible and with respect to its any proposed obligations under assignment, such assignment complies with those requirements set forth paragraph 11.(c);
(iii) the nature and character of the proposed assignment agreement subtenant or assignee, its business or activities and is intended use of a character and reputationthe Premises is, and engaged in a businessLandlord's reasonable judgment, which is in keeping with the standards of the BuildingBuilding and the floor or floors on which the Premises are located;
(eiv) in the premises shall event that there is comparable space available to be used only leased in the Building, the proposed subtenant or assignee is not then an occupant of any part of the Building or a party who dealt with Landlord or Landlord's agent (directly or through a broker) with respect to space in the Building during the six months immediately preceding Tenant's request for the purpose set forth in Article 1 hereofLandlord's consent;
(fv) an executed duplicate originalall costs incurred with respect to providing reasonably appropriate means of ingress and egress from the sublet space or to separate the sublet space from the remainder of the Premises shall, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior subject to the effective date thereof. Tenant will also deliver provisions of Article 6 with respect to Landlordalterations, at least thirty installations, additions or improvements, be borne by Tenant;
(30vi) days prior each sublease shall state specifically that (i) it is subject to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the terms, covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
, (gii) each the subtenant or assignee, as the case may be, will not have the right to a further assignment shall thereof or sublease or assignment thereunder, or to allow the Premises to be subject and subordinate to all of used by others, except in accordance with the covenants, agreements, terms, provisions and conditions terms of this Lease Article, (iii) a consent by Landlord thereto shall not be deemed or construed to modify, amend or affect the terms and provisions of this Lease, or Tenant's obligations hereunder, which shall continue to apply to the premises involved, and the "Prime Lease" occupants thereof, as such term if the sublease or assignment had not been made, (iv) if Tenant defaults in the payment of any rent, beyond any applicable notice and grace period, Landlord is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal authorized to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding collect any assignment and/or the acceptance of rent rents due or additional rent by Landlord accruing from any assignee, Tenant shall and will remain fully liable for the payment subtenant or other occupant of the Premises and to apply the net amounts collected to the fixed annual rent and additional rent due reserved herein and to become due hereunder and for (v) the performance receipt by Landlord of all the covenantsany amounts from an assignee or subtenant, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the or other occupant of any part of the Premises shall not be deemed or construed as releasing Tenant from Tenant's obligations hereunder or the acceptance of that party as a direct tenant;
(vii) Tenant, shall have paid Landlord any reasonable costs incurred by Landlord to be keptreview the requested consent including, observed and performedwithout limitation, any reasonable attorney's fees incurred by Landlord not to exceed $2,500.00;
("Obligation"viii) provided, however, that if Tenant shall timely have complied with all of the conditions set forth provisions in this Article 7 and Landlord has approved Section 11(f) with respect to any sublease;
(in writingix) the proposed assigneesubtenant or assignee is not (i) an employment or recruitment agency; (ii) a school, Tenant shall be released from said Obligationscollege, effective upon the effective date of the assignment of this Lease. The listing of university or educational institution whether or not for profit; (iii) a government or any name other than that of Tenant, whether on the doors of the premises, on the Building directory, subdivision or otherwise, shall not operate to vest any right or interest in this Lease or agency thereof; (iv) engaged in the premises business of providing office space and facilities to sublessees or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.licensees; or
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not without, in each instance, obtaining the prior consent of Landlord, which consent shall not be unreasonably withheld or delayed, (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereofthe demised premises or allow the same to be used or occupied by others or in violation of Article 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation encumber this Lease or all or part of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant for all or occupied, or utilized for desk space part of the demised premises or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent an assignee of Landlord in every case and any attempt thereat shall be void any of no force or effectthis Lease. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant or transferee subtenant, or sale the transfer of a majority of the total interest in any other entity (partnership or sales (otherwise) which is a tenant or subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation takeover agreement shall be deemed a transfer of Tenant into or with any other corporation or business entity or this Lease, (iii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the sale provisions of this Article 11, and (iv) a modification, amendment or extension without Landlord's prior written consent of a sublease previously consented to by Landlord shall be deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, shall have violated the provisions of this Section 11.01.
11.02. The provisions of clauses (a) and (b) of Section 11.01 hereof shall not apply to transactions entered into by Tenant with a Tenant Affiliate. "Tenant Affiliate" shall mean (i) an entity into which the Tenant is merged or consolidated, or to which all or substantially all of the stock or assets of Tenant are transferred, or to which all or substantially all of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayedbusiness at the Premises is transferred, provided that:
(c) Tenant shall furnish Landlord with such merger or consolidation or transfer involves the name and business address transfer of the proposed assignee, Tenant as an ongoing business entity and the successor has a counterpart net worth at least equal to or in excess of the proposed assignment agreement, and satisfactory information with respect to the nature and character net worth of Tenant as of the business date hereof; (ii) a corporation which controls, is controlled by or is under common control with Tenant (the term "control" meaning ownership of not less than 51% of the proposed assignee together with current financial information outstanding voting stock of a corporation); or (iii) a partnership in which and for so long as Tenant or a Tenant Affiliate shall be a general partner and of which Tenant (or one or more Tenant Affiliates) shall own not less than 51% of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantlegal equitable interest.
Appears in 1 contract
Samples: Lease Agreement (Viant Corp)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesBuilding, the Property nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than Use of the Premises as hereinbefore set forthstated in the Article contained herein entitled “REFERENCE DATA”, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case case. Landlord agrees not to unreasonably withhold, delay or condition such consent provided that
(a) this Lease is in full force and effect,
(b) Tenant is not and has not at any time been in default under this Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a default under this Lease,
(c) the financial worth of the proposed assignee or subtenant is satisfactory to Landlord, and
(d) any assignee or subtenant of the entire Premises shall assume, by written recordable instrument, in form and content satisfactory to Landlord, Tenant and any attempt thereat such subtenant or assignee, all acting reasonably, the due performance of all Tenant’s obligations under this Lease, including any accrued obligations at the time of the assignment or subletting of the entire Premises or, in the case where a subtenant subleases a portion of the Premises, such subtenant acknowledges that the sublease is subject and subordinate to this Lease. For purposes hereof, the transfer of a controlling interest in the corporation or other entity constituting Tenant shall be void any of no force or effect. For the purposes deemed an assignment of this Lease. Notwithstanding the foregoing language of this Article to the contrary, provided that
(a) this Lease is in full force and effect,
(b) Tenant is not at the time of the effective date of a Permitted Transfer in default under this Lease beyond any applicable notice and cure period and has not at any time during the immediately preceding 12 months been in default under this Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a default under this Lease and
(c) the Affiliate (as defined below) shall assume, by written recordable instrument, in form and content satisfactory to Landlord (the “Assumption Document”), the due performance of all Tenant’s obligations under this Lease, including any accrued obligations at the time of the assignment or subletting,
(d) At the time of the Permitted Transfer, the ultimate parent (if any) of the Affiliate shall guaranty the full performance of Tenant’s obligations under this Lease in a form acceptable to Landlord (an “Ultimate Parent Guaranty”) (Provided, however, that, in the event an Ultimate Parent Guaranty is in Tenant’s reasonable judgement infeasible, inapplicable or otherwise not available and Landlord’s insistence on an Ultimate Parent Guaranty would in Tenant’s reasonable judgment prevent or unreasonably complicate the transaction giving rise to the contemplated Permitted Transfer, then, (i) the transfer in addition to all other information to be provided by Tenant to Landlord in conjunction with a Permitted Transfer, Tenant shall provide reasonable information and explanations to Landlord as to why an Ultimate Parent Guaranty is infeasible, inapplicable or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenantotherwise not available, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) an Ultimate Parent Guaranty shall not be a merger or consolidation condition of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) applicable Permitted Transfer and (iiiii) the following shall apply. If the net worth of the assignee or subtenant Affiliate falls materially below the net worth of such Affiliate as of the date the financial information was provided to Landlord in conjunction with the applicable Permitted Transfer event, whether because of a transfer of assets by a parent entity or otherwise, (A) Tenant agrees to notify Landlord, (B) Landlord reserves the right to then require reasonable additional Tenant credit enhancement, including, without limitation, a guaranty of this Lease by another Tenant affiliated entity with a suitable net worth, a letter of credit, or some other commercially reasonable means of credit enhancement, and (C) Tenant agrees to cooperate and coordinate with Landlord in providing such guaranty, letter of credit or other credit enhancement) , and
(e) Tenant provides Landlord with a Notice of Permitted Transfer (as described and in accordance with the provisions below), Landlord’s consent shall not be deemed required with respect to be an assignment of this Lease requiring or subletting of the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises entire Premises or any part portion thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no an Affiliate for such assignment, subletting, occupancy or collection time as such entity remains an Affiliate. The foregoing shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant“Permitted Transfer”.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Building Lease (D8 Holdings Corp.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither shall not (i) assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor granted (ii) sublet the Demised Premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 9, will be assigned(iii) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor Demised Premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, Tenant or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as otherwise (each a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, "Transfer"); without in each instance obtaining the prior written consent of Landlord Landlord, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) For purposes of this Article 15, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest or of the general partnership interest in every case and any attempt thereat partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, or the creation of new stock by which an aggregate of more than fifty (50%) percent of Tenant's stock shall be void vested in a party or parties who are nonstockholders as of the date hereof, shall be deemed a Transfer except that the sale of the capital stock of any corporate tenant by the corporate tenant or by any holder of no force such stock through the `over-the- counter market' or effectthrough any recognized stock exchange, other than by holders of such stock who are deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, shall not be deemed to be a Transfer, (ii) a takeover agreement of a corporate tenant shall be deemed a Transfer, (iii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 15, and (iv) a modification, amendment or extension of a sublease shall be deemed a Transfer. For the purposes of this LeaseArticle 15, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of TenantTenant acknowledges that it will be liable to pay to Landlord, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenantupon demand, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, reasonable attorneys' fees and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, reasonable out-of-pocket expenses incurred in connection with (i) the sale reviewing Tenant's request for a Transfer.
15.2 The provisions of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant Section 15.1 hereof shall not apply to transactions with an entity into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.with
Appears in 1 contract
Samples: Lease (Mercator Software Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 22.1. Except as otherwise expressly provided in this Article, Tenant shall not, without obtaining the prior written consent of Landlord, in each instance:
(a) Tenant covenants and agreesassign or otherwise transfer this Lease, for Tenant and its successorsor any part of Tenant's right, assigns and legal representativestitle or interest therein;
(b) sublet all or any part of the Premises or allow all or any part of the Premises to be used or occupied by any other Persons; or
(c) mortgage, pledge or otherwise encumber this Lease, or the Premises. For purposes of this Article:
(a) the transfer of more than forty-nine percent (49%) of any class of capital stock of any corporate tenant or subtenant, or the transfer of more than forty-nine percent (49%) of the total interest in any other Person which is a tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be; provided, however, that neither Tenant may transfer its stock to any current stockholder or to any member of the immediate family of Xxxx Xxxxx and/or Xxxx Xxxxx, or to a trust controlled by Xxxx Xxxxx and/or Xxxx Xxxxx, and such transfer shall not be deemed an assignment for the purposes of this Lease nor the term and estate hereby grantedprovided Tenant notifies Landlord in advance of such transfer;
(b) an agreement by any other Person, nor directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment;
(c) any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, Person to whom Tenant's interest under this Lease passes by operation of law, or otherwise), shall be bound by the provisions of this Article; and
(d) each modification, amendment or extension or any sublease to which Landlord has previously consented shall be deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any time such information and assurances as Landlord may reasonably request that neither the premisesTenant, nor any part thereofpreviously permitted subtenant, will has violated the provisions of this Article.
Section 22.1 shall NOT apply to transactions entered into by Tenant with a corporation into (or with) which Tenant is merged or consolidated or to which substantially all of Tenant's assets are transferred, provided that (a) such merger, consolidation, or transfer of assets is for a good business purpose and not a device for the transfer of Tenant's interest in this Lease; and (b) the assignee or successor entity has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to such merger, consolidation, or transfer, or as of the date of this Lease, whichever is greater, as evidenced by financial statements prepared and certified by independent certified public accountants.
22.3. Any assignment, whether made with Landlord's consent as required by Section 22.1 or without Landlord's consent pursuant to Section 22.2, shall not be encumbered effective, and shall be null and void as against Landlord, unless and until:
(a) the assignee shall execute, acknowledge and deliver to Landlord an agreement, in any manner form and substance reasonably satisfactory to Landlord, under which (i) the assignee assumes the obligations and performance of this Lease and agrees to be bound personally by reason all of any act or omission the covenants, agreements, terms, provisions and conditions hereby on the part of Tenant, or will be used or occupied, or permitted Tenant to be used performed or occupiedobserved on and after the effective date of any such assignment; and (ii) the assignor agrees that the provisions of this Article shall continue binding upon it in the future, notwithstanding the assignment or utilized for desk space other transfer; and
(b) in the case of an assignment pursuant to Section 22.2, Tenant or for mailing privileges its successor shall have delivered to Landlord financial statements certified by certified public accountants evidencing satisfaction of the net worth requirement in Section 22.2(b).
22.4. Tenant covenants that, notwithstanding any assignment or as a concessiontransfer, by anyone other than Tenant, whether or for any purpose other than as hereinbefore set forth, or will be sublet, without not in violation of the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes provisions of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or notwithstanding the acceptance of the Rents by Landlord from an assignee, subtenant or occupant as Tenanttransferee, or a release any other Person, Tenant shall remain fully and primarily and jointly and severally liable for the payment of Tenant as sub-lessor or assignor from all Rents due and to become due under this Lease and for the further performance by Tenant and observance of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder Tenant to be kept, performed or observed. After any assignment, subletting, or other transfer permitted under Sections 22.1 or 22.2, Tenant's liability liabilities and obligations under this Lease shall not be discharged, released or impaired in any respect by an agreement or stipulation made by Landlord (or the holder of any Senior Encumbrance) extending the Term, or modifying any obligations contained in this Lease, or by any waiver or failure of Landlord to enforce any of Tenant's obligations under this Lease, and Tenant shall continue liable hereunder. If any such agreement or modification operates to increase the obligations of Tenant under this Lease, the liability under this Section of the Tenant named in the event of an assignment, Lease shall continue to be no greater than as if such agreement or modification had not been made.
22.5. Landlord shall not at any time be released, relieved or discharged by reason of Landlord's unreasonably withhold its consent to such an assignment nor shall Tenant at any time be releasedof this Lease, relieved or discharged of any such obligations a subletting of the parties to this Lease whole or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion a part of the premises be sublet, the assignee or subtenant, as the case may be, shall have no rightPremises, and shall not be entitled, use reasonable efforts to exercise any option contained in this Lease which may be exercised by respond to Tenant.
's request within thirty (b30) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any days after receipt of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign information required under this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided thatprovided:
(ca) Tenant shall furnish give Landlord with the name and business address of the proposed subtenant or assignee, a counterpart of the proposed assignment agreement, and satisfactory adequate information with respect to the nature and character of the business of the proposed assignee together with subtenant's or assignee's business, references and current financial information with respect to net worth, credit and financial responsibility as are reasonably satisfactory to Landlord, and an executed counterpart of the sublease or assignment agreement;
(b) the proposed assigned certified by subtenant or assignee must be a certified public accountant reputable party whose financial net worth, credit and referencesfinancial responsibility are, including banking referencesconsidering the obligations under this Lease, reasonably satisfactory to Landlord;
(dc) in the judgment nature and character of Landlord, the proposed assignee is financially responsible with respect to subtenant or assignee, its proposed obligations under business or activities and intended use of the proposed assignment agreement and is of a character and reputationPremises are, and engaged in a businessLandlord's reasonable judgment, which is in keeping with the standards and character of the BuildingBuilding and the floor or floors on which the Premises are located;
(d) the proposed subtenant or assignee is not then an occupant of any part of the Building or a Person who dealt with Landlord (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;
(e) Tenant shall bear all costs of providing appropriate means of ingress and egress from the premises sublet space (or of separating the space to be subleased from the remainder of the Premises) and shall be used only for the purpose set forth in comply with Article 1 hereof10;
(f) an executed duplicate original, in form satisfactory each assignment or sublease shall specifically state that:
(i) it is subject to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the terms, covenants, agreements, termsprovisions, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(gii) each assignment shall be subject and subordinate the subtenant or assignee as the case may be, will not have the right to further assign or sublet all or part of the covenantsPremises or to allow same to be used by others, agreementswithout Landlord's prior written consent in each instance;
(iii) a consent by Landlord thereto shall not be deemed or construed to modify, terms, amend or affect the terms and provisions and conditions of this Lease Lease, or Tenant's obligations hereunder, which shall continue to apply to the space involved, and the "Prime Lease" occupants thereof, as such term is hereinafter defined; andif the sublease or assignment had not been made;
(hiv) Assignee shall deposit with if Tenant defaults in paying any Rents, Landlord an amount equal is authorized to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding collect any assignment and/or the acceptance of rent Rents due or additional rent by Landlord accruing from any assignee, Tenant shall and will remain fully liable for the payment subtenant or other occupant of the rent and additional rent due Premises and to become apply the net amounts collected to the Rents due hereunder and for the performance hereunder, in such priorities as Landlord may determine;
(v) Landlord's receipt or acceptance of all the covenantsany payments from an assignee, agreementssubtenant, terms, provisions and conditions contained in this Lease and Guaranty on the or other occupant of any part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, Premises shall not operate to vest any right be deemed or interest in construed as releasing Tenant from Tenant's obligations under this Lease or in the premises or to be deemed to be the written consent acceptance of Landlord mentioned in this Article 7, it being expressly understood that any such listing is Person as a privilege extended by Landlord revocable at will by written notice to Tenant.direct tenant; and
Appears in 1 contract
Samples: Lease Agreement (Happy Kids Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not without, in each instance, obtaining the prior consent of Landlord, (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereofthe demised premises or allow the same to be used or occupied by others or in violation of Article 5, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation encumber this Lease or all or part of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant for all or occupied, or utilized for desk space part of the demised premises or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent an assignee of Landlord in every case and any attempt thereat shall be void any of no force or effectthis Lease. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant or transferee subtenant, or sale the transfer of a majority of the total interest in any other entity (partnership or sales (otherwise) which is a tenant or subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall not be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, shall have no rightprovided that such transfer was not primarily for the purpose of transferring Tenant's leasehold interest hereunder, and shall not be entitled, to exercise (ii) any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock person or legal representative of Tenant, if Tenant is a corporationto whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of all of the ownership interests of Tenantthis Article 11, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or and (iii) the sale of all a modification, amendment or substantially all of the assets of Tenant, assign this Lease, with extension without Landlord's prior written consent of a sublease previously consented to by Landlord shall be deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, shall have violated the provisions of this Section 11.01.
11.02. The provisions of clauses (a) and (b) of Section 11.01 hereof shall not apply to transactions entered into by Tenant with a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant's assets are transferred, provided (a) such merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and (b) the assignee or successor entity has a net worth at least equal to or in excess of the net worth of Tenant either (i) immediately prior to such merger, consolidation or transfer or (ii) as of the date hereof, whichever is greater.
11.03. Any assignment or transfer, whether made with Landlord's consent as required by Section 11.01 or without Landlord's consent pursuant to Section 11.02, shall not be unreasonably withheld or delayedeffective unless and until (a) the assignee shall execute, provided that:
(c) Tenant shall furnish acknowledge and deliver to Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment recordable agreement, in form and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, substance reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein whereby the assignee agrees shall (i) assume the obligations and performance of this Lease and agree to assume be personally bound by all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty hereof on the part of Tenant to be kept, performed or observed on and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon after the effective date of any such assignment and (ii) agree that the assignment provisions of this Lease. The listing Article 11 shall, notwithstanding such assignment or transfer, continue to be binding upon it in the future, and (b) in the case of any name other than that an assignment or transfer pursuant to Section 11.02 Tenant or its successor shall have delivered to Landlord financial statements certified by a reputable firm of Tenant, whether on the doors certified public accountants evidencing satisfaction of the premises, on the Building directory, or otherwise, shall not operate net worth requirements referred to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to TenantSection 11.
Appears in 1 contract
Samples: Lease Agreement (2bridge)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than as hereinbefore set forthstated in Article 1, or will be sublet, without the prior written consent of Landlord in every case. Such consent shall not, in the case of a proposed subletting, be unreasonably withheld or delayed. In connection with any request by Tenant for such consent, Tenant shall submit to Landlord, in writing, a statement containing all of the terms and any attempt thereat provisions upon which the proposed transaction is to occur. If the rent received by Tenant on account of a proposed assignment or sublease requiring such consent exceeds the Yearly Fixed Rent and Additional Rent, allocated to the space subject to the assignment or sublease in the proportion of the area of such space to the area of the entire Demised Premises, plus actual out-of-pocket expenses incurred by Tenant in connection therewith, including brokerage commissions, marketing expenses and the cost of preparing such space for occupancy, Tenant shall be void any pay to Landlord one hundred (100) percent of no force such excess, as received by Tenant. Notwithstanding the foregoing provisions of this paragraph and except as otherwise hereinafter set forth, in the event Tenant proposes to assign this Lease or effect. For enter into a sublease such that all or substantially all of the purposes Demised Premises will have been sublet, Landlord, at Landlord’s option, may give to Tenant, within thirty (30) days after the submission by Tenant to Landlord of such proposal, a notice terminating this Lease on the date (referred to as the “Earlier Termination Date”) immediately prior to the effective date of the proposed assignment or the proposed commencement date of the term of the proposed subletting, as set forth in such proposal, and, in the event such notice is given, this Lease and the Term shall come to an end and expire on the Earlier Termination Date with the same effect as if it were the date originally fixed in this Lease for the end of the Term of this Lease, (i) and the transfer Rent shall be apportioned as of said Earlier Termination Date and any prepaid portion of Rent for any period after such date shall be refunded by Landlord to Tenant. The failure by Landlord to exercise its option under this Article with respect to any assignment or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 subletting shall not be deemed a waiver of such option with respect to any extension of such sublease or any of Tenant's covenants contained subsequent assignment or subletting. Tenant shall reimburse Landlord promptly, as Additional Rent, for reasonable legal and other expense incurred by Landlord in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance connection with any request by Tenant of for any consent required under the covenants, agreements, terms, provisions and conditions of this Lease on Article. Notwithstanding the part foregoing, Tenant may, following notice to Landlord but without the requirement of the tenant hereunder obtaining Landlord’s consent or affording Landlord an opportunity to be kept, performed or observed. Tenant's liability under terminate this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of beyond the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) applicable grace or cure period at the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, time of such assignment agreement shall be delivered to Landlord notice or at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon time thereafter until the effective date of the assignment or the commencement date of the term of the subletting (as the case may be), assign this LeaseLease or sublease all or any portion of the Demised Premises to any entity which is a parent, subsidiary or affiliate of Tenant or assign this Lease to any entity with which Tenant may merge or consolidate or which results from any such merger or consolidation or to which Tenant may sell all or substantially all of its assets as a going concern (such entity with which Tenant may merge or consolidate or which results from any such merger or consolidation or to which Tenant may sell all or substantially all of its assets as aforesaid being hereinafter referred to as a “Successor”), provided however that, forthwith upon any assignment allowed pursuant to this paragraph, Tenant shall deliver to Landlord an agreement in form and substance reasonably satisfactory to Landlord which contains an appropriate covenant of assumption by such assignee, and provided further that in the case of any such assignment to a Successor, such Successor shall have financial resources and a general business reputation comparable to those of Tenant as of the time of such assignment. The listing of any name other than that of Tenant, whether on the doors of the premises, Demised Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Demised Premises or to be deemed to be the written consent of Landlord mentioned in this Article 7Article, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant. If this Lease be assigned, or if the Demised Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may at any time and from time to time following any default by Tenant hereunder beyond the applicable grace period, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent and other charges herein reserved, but no such 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 or occupancy 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 or occupancy.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.1 Subject to the provisions of Section 11.2 hereof Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or any interest herein, or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof of thereofthereof or allow the same to be used or occupied by others, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee at a consideration or at rental rates below the rental rates then being advertised by Landlord as its rental rates for comparable space in the Building Project and for a comparable term, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case and any attempt thereat this Article 11, which consent shall not be void any of no force or effectunreasonably withheld by Landlord. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, if the primary purpose thereof is to effectuate a transfer of this Lease, and (ii) a lease takeover agreement shall be deemed a transfer of fifty (50%) percent this Lease.
11.2 The consent of Landlord shall not be required for an assignment or more sublease of all or any portion of the capital stock demised premises to (i) a corporation into or with which Tenant is merged or consolidated, (ii) an entity to which substantially all of Tenant's shares or assets are transferred (provided such merger or transfer of shares or assets is not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to such merger or transfer) or, (iii) if Tenant is a corporation or fifty (50%) percent or more partnership, with a successor partnership, nor shall the provisions of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (ia) and (ii)b) of Section 11.1 apply to transactions with an entity (hereinafter called an "Affiliate") which controls or is controlled by Tenant or is under common control with Tenant during the period it remains an Affiliate. Furthermore, an Affiliate of Tenant shall be deemed permitted to occupy the demised premises but only during such period as it shall remain an Affiliate.
11.3 Any assignment or transfer, whether made with Landlord's consent as required by Section 11.1 or without Landlord's consent pursuant to Section 11.2, shall not be an assignment effective hereunder until, the assignee shall execute, acknowledge and deliver to Landlord a recordable agreement, in form and substance reasonably satisfactory to Landlord, whereby the assignee shall assume the obligations and performance of this Lease requiring from and after the prior written consent date of Landlord as herein set forthsuch assignment and agree to be personally bound by and upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions of Section 11.1 hereof shall, notwithstanding such an assignment or transfer, continue to be binding upon it in the future. If Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantLease, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or notwithstanding the acceptance of fixed annual rent by Landlord from an assignee or transferee or any other party, Tenant shall remain fully and primarily liable for the assignee, subtenant or occupant as Tenant, or a release payment of Tenant as sub-lessor or assignor from the further fixed annual rent and additional rent due and to become due under this Lease and for the performance by Tenant of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder Tenant to be kept, performed or observed. .
(a) Except for an assignment or sublease pursuant to Section 11.2 hereof, or pursuant to the last sentence of Section 11.1, if Tenant agrees to enter into an assignment of this Lease or a sublease to sublet the demised premises or any portion thereof, Tenant shall, as soon as that agreement is consummated, but no less than forty-five (45) days prior to the effective date of the contemplated assignment or sublease, deliver to Landlord an executed counterpart of the proposed assignment or sublease, and Landlord shall then have the right to elect, by notifying Tenant within thirty (30) days of such delivery, to (i) in the case of an assignment of this Lease, accept an assignment of this Lease from Tenant, and Tenant shall then promptly execute and deliver to Landlord or entity affiliated with Landlord, in form reasonably satisfactory to Landlord's counsel, an assignment on the terms reflected in the proposed assignment, which assignment shall be effective as of such effective date and shall relieve Tenant of further liability accruing under this Lease after such effective date as to such portion of the demised premises assigned to Landlord or entity affiliated with Landlord, and (ii) accept a sublease from Tenant of the portion of the demised premises affected by any such proposed subletting or the entire demised premises in the case of a proposed subletting thereof, and Tenant shall then promptly execute and deliver a sublease to Landlord or entity affiliated with Landlord, for the duration of Tenant's proposed subletting, commencing with such effective date, at the rental terms reflected in the proposed sublease. If an offer of sublease to Landlord results in all or substantially all of the demised premises being sublet for substantially all of the term of this Lease (i.e., the balance of the term less one year or less), then Landlord shall have the option to extend the term of the sublease being offered to it for the remainder of the term of this Lease less one day.
(b) If Landlord should elect to have Tenant execute and deliver a sublease pursuant to any of the provisions of this Section 11.4, said sublease shall be in a form reasonably satisfactory to Landlord's and Tenant's counsel and on all the terms contained in this Lease, except that:
(i) The rental terms shall be as provided in subsection 11.4(a) hereof,
(ii) The sublease shall not provide for any work to be done for the subtenant or for any initial rent concessions or contain provisions inapplicable to a sublease, except that in the case of a subletting of a portion of the demised premises, Tenant shall reimburse subtenant for the cost of erecting such demising walls as are necessary to separate the subleased premises from the remainder of the demised premises and to provide access thereto, provided Tenant was obligated to perform such work or reimburse the proposed subtenant for such work under the terms of the proposed sublease,
(iii) The subtenant thereunder shall have the right to underlet the subleased premises, in whole or in part, without Tenant's consent,
(iv) The subtenant thereunder shall have the right to make, or cause to be made, any changes, alterations, decorations, additions and improvements that such subtenant may desire or authorize,
(v) Such sublease shall expressly negate any intention that any estate created by or under such sublease be merged with any other estate held by either of the parties thereto,
(vi) Any consent required of Tenant, as lessor under that sublease, shall be deemed granted if consent with respect thereto is granted by Landlord,
(vii) The use of the sublet premises by the subtenant shall be for general, administrative and/or executive offices unless constructed for another purpose by or for Tenant in which event Landlord may in addition use it for such purpose,
(viii) Any failure of the subtenant thereunder to comply with the provisions of said sublease, other than with respect to the payment of rent to Tenant, shall not constitute a default thereunder or hereunder if Landlord has consented to such non-compliance, unless such failure to comply would cause a violation of law or would increase or extend the liability of Tenant under this Lease,
(ix) Upon execution of such sublease, Tenant's obligations with respect to vacating the demised premises and removing any changes, alterations, decorations, additions or improvements made in the event subleased premises shall be limited to those which accrued and related to such as were made prior to the effective date of an assignmentthe sublease, and
(x) Such sublease shall not provide that at the expiration of the term of such subletting Tenant will accept the space in the condition provided for in the proposed sublease. If Landlord should elect to have Tenant execute and deliver a sublease pursuant to any time of the provisions of this Section 11.4, Tenant shall be releasedexcused from having to obtain Landlord's consent, relieved as required by the terms of this Lease, for changes, alterations, decorations, additions or discharged improvements desired by reason the Subtenant.
(c) If pursuant to the exercise of any of Landlord's options pursuant to Section 11.4 hereof this Lease is terminated as to only a portion of the demised premises, then the fixed annual rent payable hereunder and the additional rent payable pursuant to Articles 3 and 4 hereof shall be adjusted in proportion to the portion of the demised premises affected by such termination.
11.5 In the event that Landlord does not exercise the option available to it pursuant to subsection 11.4(a) hereof, Landlord shall not unreasonably withhold or delay its consent to such an assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion a proposed subletting of the premises be sublet, the assignee or subtenantdemised premises, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided thatprovided:
(ca) Tenant shall furnish have furnished Landlord with the name and business address of the proposed subtenant or assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to its intended use of the demised premises and the nature and character of the business proposed subtenant's or assignee's business, or activities, and, if Tenant is no longer the actual tenant of the proposed assignee together with demised premises, such reasonable references and current financial information with respect to net worth, credit and financial responsibility as are reasonably satisfactory to Landlord, and an executed counterpart of the sublease or assignment agreement;
(b) the proposed assigned certified by subtenant or assignee is a certified public accountant reputable party whose financial net worth, credit and referencesfinancial responsibility is, including banking referencesconsidering the responsibilities involved, satisfactory to Landlord;
(dc) the proposed subtenant or assignee is not then an occupant of any part of the Building Project or a party who is dealing with Landlord or Landlord's agent (directly or through a broker) with respect to space then available (or becoming available) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;Building Project; and
(ed) the premises each sublease shall be used only for the purpose set forth in Article 1 hereof;
specifically state that (fi) an executed duplicate original, in form satisfactory it is subject to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the terms, covenants, agreements, termsprovisions, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
, and (gii) the subtenant or assignee, as the case may be, will not have the right to a further assignment thereof or sublease or assignment thereunder, or to allow the demised premises to be used by others, without the prior reasonable consent of Landlord in each instance. With respect to clause (c) above, if Tenant informs Landlord that it is commencing assignment or sublease negotiations with a party and inquires if Landlord is also dealing with such party, Landlord shall be subject disclose such information to Tenant and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding if Landlord is not dealing with such disclosed party, as long as Tenant is continuously negotiating in good faith with such disclosed party for the demised premises, Landlord will not initiate negotiations with such party.
11.6 If Tenant defaults in the payment of any assignment and/or the acceptance of rent rent, Landlord is authorized to collect any rents due or additional rent by Landlord accruing from any assignee, Tenant shall and will remain fully liable for the payment subtenant or other occupant of the demised premises and to apply the net amounts collected to the fixed annual rent and additional rent due and to become due hereunder and for the performance reserved herein. The receipt by Landlord of all the covenantsany amounts from an assignee or subtenant, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the or other occupant of any part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, demised premises shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be or construed as releasing Tenant from Tenant's obligations hereunder or the written consent acceptance of Landlord mentioned in this Article 7, it being expressly understood that any such listing is party as a privilege extended by Landlord revocable at will by written notice to Tenantdirect tenant.
Appears in 1 contract
Samples: Lease Agreement (Interliant Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 5 hereof, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner or permit any lien to be filed against the Lease, the demised premises or the Building by reason of any act or omission on the part of TenantTenant or enter into any agreement which would permit the filing of a lien by any broker, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case and any attempt thereat shall be void any of no force or effectthis Article 11. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to except that the contrary contained in this Article 7, and so long as Tenant is not in default transfer of the outstanding capital stock of any of the covenantscorporate tenant, agreementsor subtenant, terms, provisions and conditions of this Lease on its part shall be deemed not to be kept, observed and performed, Tenant may, in connection with (i) include the sale of all 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 capital stock Securities Exchange Act of 1934 as amended, (ii) a takeover agreement shall be deemed a transfer of this Lease, (iii) any person or legal representative of Tenant, if to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension of a sublease shall be deemed a sublease.
11.02. The provisions of Section 11.01 hereof shall not apply to transactions with (a) a corporation into or with which Tenant is a corporation, merged or of consolidated or with an entity to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the ownership interests purpose of Tenanttransferring the leasehold estate created hereby, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to such merger or transfer) or, if Tenant is a partnership, or with a successor partnership, and (iib) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets an "Affiliate" of Tenant, assign this Leaseas defined in Section 22.05 hereof.
11.03. Any assignment or transfer, whether made with Landlord's prior written consent which as required by Section 11.01 or without Landlord's consent pursuant to Section ll.02, shall be made only if, and shall not be unreasonably withheld or delayedeffective until, provided that:
(c) Tenant the assignee shall furnish execute, acknowledge and deliver to Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment recordable agreement, in form and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, substance reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein whereby the assignee agrees shall assume the obligations and performance of this Lease and agree to assume be personally bound by and upon all of the covenants, agreements, termsany and all covenants, provisions obligations and conditions liabilities of this Lease Landlord hereunder, and it shall be deemed and construed as a covenant running with the land without further agreement between the parties or their successors in interest, or between the parties and the transferee of title to be keptsaid Land and Building or said lease, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after or the effective date of such assignment, be jointly and severally liable for the performance of all said lessee of the conventsBuilding, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all or of the Land and Building, that the transferee or the lessee has assumed and agreed to carry out any and all such covenants, agreements, terms, provisions obligations and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent liabilities of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenanthereunder.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither shall not (1) assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (2) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereofArticle 5 hereof, will be assigned(3) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(4) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord in every case agrees that it will not unreasonably withhold its consent to Tenant's advertisement or Tenant's authorization of a broker's advertisement for a subtenant or assignee provided Tenant shall have complied with the provisions of Section 11.05 hereof and any attempt thereat Landlord shall be void not have exercised any of no force or effectthe rights granted therein. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall have no rightbe deemed not to include the sale of such stock by persons or parties, through the "over the counter market" or through any recognized stock exchange, (ii) any agreement whereby a third party takes over the obligations of Tenant under the Lease shall be deemed an assignment of this Lease, (iii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iv) a modification, amendment or extension of a sublease shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenantdeemed a sublease.
(b) Notwithstanding anything If Tenant intends to assign this Lease or sublease the contrary contained in demised premises or any portion thereof (other than by an assignment or sublease contemplated by Section 11.02 hereof), Tenant shall first comply with the provisions of Section 11.05 hereof and Landlord shall have the rights described therein. If Landlord does not exercise any of its rights under Section 11.05 hereof then, provided Tenant shall have complied with the provisions of this Article 711, and so long as Tenant is Landlord shall not in default of any of the covenants, agreements, terms, provisions and conditions unreasonably withhold or delay its consent to an assignment of this Lease on its part or a sublease of the demised premises as more specifically set forth in Section 11.07 hereof. The provisions of this subsection 11.01(b) are meant to be kepta summary only of the provisions of this Article 11 and this subsection 11.01(b) in no way shall limit the scope of this Article 11 nor the intent or application of any provision hereof. In the event of any conflict between the provisions of this subsection 11.01(b) and the other provisions of this Article 11, observed and performed, such other provisions shall prevail.
11.2. The provisions of Section 11.01 hereof shall not apply to transactions with a corporation into or with which Tenant may, in connection is merged or consolidated or with (i) the sale of an entity to which substantially all of the capital stock Tenant's assets or all or a majority of Tenant's stock are transferred (provided such merger or transfer of stock or assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, if Tenant is and provided further, that the assignee has a corporation, net worth at least equal to or of all in excess of the ownership interests net worth of TenantTenant immediately prior to such merger or transfer, such net worth to be calculated in accordance with generally accepted accounting principles consistently applied) or, if Tenant is a partnership, or with a successor partnership, nor shall the provisions of clauses (iil) a merger or consolidation and (2) of Tenant into or Section 11.01 apply to transactions with any person, corporation, partnership, joint venture or other corporation entity which, directly or business entity indirectly controls, is controlled by or is under common control with the Tenant named herein (iii) each named hereinafter referred to as an "Affiliate of Tenant"). For the sale of all or substantially all purposes of the assets foregoing, "control" shall mean ownership of Tenanta majority of the legal and beneficial interest in such corporation, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord together with the name ability to direct the management, affairs and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date operations thereof. Tenant will also deliver Any transfer or cessation of control over any Affiliate to Landlord, at least thirty (30) days prior to the effective date thereof, which this Lease is assigned shall constitute an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions assignment of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of Article 11, other than the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwiseSection 11.02, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantapply.
Appears in 1 contract
Samples: Lease Agreement (Priceline Com Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 7.1. The Tenant covenants and agreescovenants, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyit being agreed that (y) issuance by the Tenant of stock and/or the transfer of already-issued stock/partnership interest, involuntarilyin one or more transactions so as to transfer control or transfer 50% or more of an interest in the Tenant, by operation of lawother than through over-the-counter or national securities exchange transactions, or otherwise(z) sale or transfer of 25% or more of the assets of the Tenant in one or more transactions, other than in the ordinary course of business, shall, in either event, be deemed an assignment of this Lease), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, or offered or advertised for subletting; provided, however, that, if the Tenant is a corporation, the assignment or transfer of this Lease, and the term and estate hereby granted, to any corporation into which the Tenant is merged or with which the Tenant is consolidated (such corporation being hereinafter in this Article called the "Assignee") without the prior written consent of the Landlord in every case shall not be deemed to be prohibited hereby if, and any attempt thereat shall be void any of no force upon the express conditions that, (i) the primary purpose for such merger or effect. For consolidation is other than the purposes transfer of this Lease, (iii) the transfer or transferee or sale or sales (in either one or surviving entity has a series of transactions) of fifty (50%) percent or more net worth at least equal to that of the capital stock Tenant's on the date hereof or the date of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shallconsolidation, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantwhichever is greater, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlordmerger or consolidation, at least thirty (30) days prior the Assignee shall have executed and delivered to the effective date thereof, Landlord an assumption agreement in form and substance satisfactory to the Landlord wherein whereby the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease Assignee shall agree to be kept, observed personally bound by and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of upon all the covenants, agreements, terms, provisions and conditions contained set forth in this Lease and Guaranty on the part of the Tenant to be kept, observed and or performed, ("Obligation") provided, however, and whereby the Assignee shall expressly agree that if Tenant shall timely have complied with all the provisions of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assigneeshall, Tenant shall be released from said Obligationsnotwithstanding such assignment or transfer, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or continue to be deemed binding upon it with respect to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantall future assignments and transfers.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 10.1 Tenant shall not by operation of law or otherwise (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the Premises or any part hereof of thereofthereof or allow the same to be used or occupied by others, will be assigned(c) mortgage, mortgaged, pledged, encumbered pledge or otherwise transferred (whether voluntarily, involuntarily, by operation of law, encumber this Lease or otherwise), and that neither the premises, nor Premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied(d) advertise, or permitted authorize a broker to be used advertise, for a subtenant or occupiedan assignee, or utilized for desk space or for mailing privileges or as a concessionwithout, by anyone other than Tenantin each instance, or for any purpose other than as hereinbefore set forth, or will be sublet, without obtaining the prior written consent of Landlord Landlord, except as otherwise expressly provided in every case this Article 10. For purposes of this Article 10, the transfer of a majority of the issued and outstanding capital stock of any attempt thereat corporate tenant shall not be deemed an assignment of this Lease. Except as otherwise provided in this Article 10, an agreement by (i) any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be void deemed an assignment, (ii) any person or legal representative of no force Tenant, to whom Tenant's interest under this Lease passes by operation of law, or effectotherwise, and (iii) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord upon demand at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Section 10.1.
10.2 Subject to the following sentence, the provisions of Section 10.1 hereof shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant's assets are transferred (for a bonafide business purpose and not to avoid liability under the Lease) provided that the assignee has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to such merger or transfer and Tenant provides Landlord at least fifteen (15) days prior written notice of such merger, consolidation or transfer or to an "affiliate" of Tenant. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation hereof an "affiliate" of Tenant into or with an other corporation or business entity shall, in each instance referred shall mean as to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises Tenant or any part thereof by sublet or occupied by anybody other than Tenantentity, Landlord mayan entity that controls, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenantis controlled by, or a release of is under common control with, Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantother entity, as the case may be, . "Control" shall have no rightmean direct ownership of more than fifty percent (50%) of the voting shares or other voting interests of the controlled entity, and "under common control with" shall not be entitledmean an entity more than fifty percent (50%) of the voting shares or other voting interests of which are directly owned by an entity which directly owns more than fifty percent (50%) of the voting shares or other voting interests in Tenant or such other entity, to exercise any option contained as the case may be. Nothing in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything Section 10.2 shall permit Tenant or any successor to use or occupy the contrary contained in this Article 7, and so long as Tenant is not in default of Premises for any of purpose other than the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth purposes stated in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions 4 of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with LandlordXxxxxxxx's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of LandlordXxxxxxxx, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by LandlordXxxxxxxx's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 7.1 The Tenant covenants and agreescovenants, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyit being agreed that (y) issuance by the Tenant of stock and/or the transfer of already- issued stock/partnership interests, involuntarilyin one or more transactions so as to transfer control or transfer 50% or more of an interest in the Tenant, by operation other than through over-the-counter or national securities exchange transactions or (z) sale or transfer of law50% or more of the assets of the Tenant in one or more transactions, or otherwiseother than in the ordinary course of business, shall, in either event, be deemed an assignment of this Lease), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, or offered or advertised for subletting without the Landlord's prior written consent in each instance, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that the Tenant may assign this Lease or sublease part or all of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, Premises without the Landlord's consent to: (i) any corporation, partnership or other entity that controls, is controlled by, or is under common control with, the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership ; or (ii) a any corporation resulting from the merger or consolidation of with the Tenant into or with an other corporation or business to any entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of that acquires substantially all of the capital Tenant's stock of Tenantor partnership or membership interests, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant's assets, assign this Lease, with Landlordas long as such assignee or sublessee assumes the Tenant's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Lease (G Iii Apparel Group LTD /De/)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Except as otherwise expressly provided in this Article 11, Tenant shall not without, in each instance, obtaining the prior consent of Landlord, (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor any (b) sublet all or part hereof of thereof, will the demised premises or allow the same to be assigned, mortgaged, pledged, encumbered used or otherwise transferred (whether voluntarily, involuntarily, occupied by operation others or in violation of lawArticle 5, or otherwise)(c) mortgage, and that neither pledge or encumber this Lease or all or part of the premises, nor any part thereof, will be encumbered demised premises in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant or transferee subtenant, or sale the transfer of a majority of the total interest in any other entity (partnership or sales (otherwise) which is a tenant or subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) , for the principal purpose of fifty (50%) percent or more transferring the leasehold estate of the capital stock Tenant hereunder or of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), such subtenant shall be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as TenantLease, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenantsublease, as the case may be, (ii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 11, and (iii) a material modification, amendment or extension without Landlord's prior written consent of a sublease previously consented to by Landlord (other than modifications consisting of changes in mere ministerial or administrative provisions of such sublease) shall be deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any time and from time to time such information and assurances as Landlord may reasonably request that neither Tenant, nor any subtenant, shall have no right, and violated the provisions of this Section 11.
01. The consent of Landlord shall not be entitledrequired to the use and occupancy of the demised premises by the Affiliates of the named Tenant or by one or more other Affiliates of the named Tenant herein simultaneously with the use and occupancy of the demised premises by the named Tenant, provided that (i) Tenant shall notify Landlord in writing of any such other Affiliates who intend to exercise occupy the demised premises at least ten (10) Business Days prior to the commencement of such occupancy, and, within ten (10) Business Days after written request from Landlord, Tenant shall furnish Landlord with reasonable evidence of such other Affiliate relationship, and (ii) such permission with respect to any option contained such Affiliates shall cease (and the provisions of this Article 11 shall become applicable) upon the earlier to occur of (X) the date such Affiliate relationship shall cease, or (Y) the date the named Tenant ceases to occupy the demised premises. If the provisions of this Article 11 shall become applicable to any such occupancy by an Affiliate of Tenant described in this Lease which may the immediately preceding sentence by reason of the cessation of the Affiliate relationship, then Landlord agrees not to unreasonably withhold its consent to a subletting of a portion of the demised premises to such party provided such subletting complies with all of the provisions of Section 11.05 hereof (and such party shall be exercised by Tenant.deemed to have satisfied the requirement in subsection 11.05(c) hereof that the nature and character of the proposed subtenant or assignee be reputable). Landlord hereby consents to a sublease of a portion of the demised premises not exceeding 5,000 rentable square feet to W&D Securities, Inc.
11.02. The provisions of clauses (a) and (b) Notwithstanding anything of Section 11.01 hereof shall not apply to the contrary contained in this Article 7, and so long as transactions entered into by Tenant with a corporation or partnership into or with which Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part merged or consolidated or with an entity to be kept, observed and performed, Tenant may, in connection with (i) the sale of which substantially all of the capital stock of Tenant's assets (and partnership interests if a partnership), if Tenant is a corporationare transferred, or of all of with any corporation or partnership (hereinafter called "TENANT'S AFFILIATE") which controls, is controlled by or is under common control with, the ownership interests of Tenant, Tenant named herein or if Tenant is a partnership, with a successor partnership, provided (a) such merger, consolidation or transfer of assets or other transaction is for a good business purpose and not principally for the purpose of transferring the leasehold estate created hereby, and (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iiib) the sale assignee or successor entity has a net worth computed in accordance with generally accepted accounting principles, consistently applied, at least equal to or in excess of all or substantially all of twenty (20) times the assets of Tenant, assign then-current fixed annual rent under this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified evidenced by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form written documentation reasonably satisfactory to Landlord for review by Landlord's counsel(hereinafter called the "NET WORTH DOCUMENTATION"). For purposes of this Section 11.02, the term "CONTROL" shall mean, in the case of a corporation, ownership or voting control, directly or indirectly, of such assignment agreement shall be delivered to Landlord at least thirty fifty percent (3050%) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenantsvoting stock, agreementsand in case of a joint venture or partnership or similar entity, termsownership, provisions and conditions contained in this Lease and Guaranty on directly or indirectly, of at least fifty percent (50%) of all the part of Tenant to be kept, observed and performed, general or other partnership ("Obligation"or similar) provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantinterests therein.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 7.1. Except as otherwise permitted in this Article Seven, the Tenant covenants and agreescovenants, for the Tenant and its successors, assigns and legal representatives, that that, without the prior written consent of the Landlord in each instance, neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, nor any of the licenses hereby granted will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyit being agreed that (y) issuance by the Tenant of stock and/or the transfer of already-issued stock/partnership interests, involuntarilyin one or more transactions so as to (i) transfer (directly or indirectly) control of the Tenant or (ii) transfer 50% or more of an interest in the Tenant, by operation of lawother than through over-the-counter or national securities exchange transactions, or otherwise(z) sale or transfer of 25% or more of the assets of the Tenant in one or more transactions, other than in the ordinary course of business, shall, in any of the events described in the foregoing clauses (y) and (z), be deemed an assignment of this Lease), and that neither the premisesPremises nor the Licensed Spaces, nor any part thereofof the Premises or any of the Licensed Spaces, will be encumbered in any manner by reason of any act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant; provided, however, that (a) an assignment or for transfer of this Lease and the term and estate hereby granted, together with the licenses hereby granted, to any purpose corporation or other than as hereinbefore set forth, entity into which the Tenant is merged or will be sublet, with which the Tenant is consolidated (such corporation or other entity being hereinafter in this Article called the "Assignee") without the prior written consent of the Landlord in every case shall not be deemed to be prohibited hereby if, and any attempt thereat shall be void any of no force upon the express conditions that, (i) the primary purpose for such merger or effect. For consolidation is other than the purposes transfer of this Lease, (iii) the transfer or transferee or sale or sales (in either one or surviving entity has a series of transactions) of fifty (50%) percent or more net worth at least equal to that of the capital stock Tenant's on the date hereof or the date of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shallconsolidation, in each instance referred to in the preceding clauses (i) whichever is greater, and (ii)iii) within thirty (30) days following the merger or consolidation, be deemed the Assignee shall have executed and delivered to the Landlord an agreement in form and substance reasonably satisfactory to the Landlord whereby the Assignee shall agree to be an assignment of this Lease requiring personally bound by and upon all the prior written consent of Landlord as herein provisions set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained forth in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and or performed, and whereby the Assignee shall expressly agree that the provisions of this Article shall, notwithstanding such assignment or transfer, continue to be binding upon it with respect to all future assignments and transfers, and ("Obligation"b) providedthe Landlord will consent to the Tenant assigning, howeversubletting or otherwise permitting the Premises to be used and occupied for the purposes specified in, and subject to the provisions of, this Lease, by any subsidiary or affiliate of the Tenant, but only for so long as the occupant remains a subsidiary or affiliate of the Tenant, provided that (i) the Tenant provides reasonable evidence of the relationship of the subsidiary or affiliate to the Tenant, (ii) in the Landlord's reasonable judgment the subsidiary or affiliate is of a character and engaged in a business such as in keeping with the standards in those respects for the Building and its occupancy and (iii) it being understood that an entity shall only be a subsidiary of the Tenant if the Tenant owns, directly or indirectly, more than 50% of the stock, partnership or other ownership interests in the entity, and shall only be an affiliate of the Tenant if under common ownership, that if Tenant shall timely have complied with all is, direct or indirect ownership by an entity holding more than 50% of the conditions set forth stock, partnership or other ownership interests in this Article 7 both the Tenant and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantaffiliate.
Appears in 1 contract
Samples: Lease Agreement (Cd Radio Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other another corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's ’s covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-sub- lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's ’s liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's ’s consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's Xxxxxxxx’s waiver of performance of any obligation hereunder or Landlord's ’s failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's Xxxxxxxx’s prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of LandlordXxxxxxxx, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's Xxxxxxxx’s counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the conventscovenants, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "“Prime Lease" ” as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("“Obligation"”) provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Store Lease
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), ) and that neither the premisesPremises, the Building, the Property nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than Use of the Premises as hereinbefore set forthstated in the Article contained herein entitled "REFERENCE DATA", or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case case. Landlord agrees not to unreasonably withhold its consent provided that
(a) the Lease is in full force and effect,
(b) Tenant is not and has not at any attempt thereat time been in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time would result in a default under the Lease,
(c) the financial worth of the proposed assignee or subtenant is reasonably satisfactory to Landlord, and
(d) any assignee or subtenant of the entire Premises shall be void any assume, by written recordable instrument, in form and content satisfactory to Landlord, the due performance of no force or effect. For the purposes of all Tenant's obligations under this Lease, (i) including any accrued obligations at the time of the assignment or subletting of the entire Premises or, in the case where a subtenant subleases a portion of the Premises, such subtenant acknowledges that the sublease is subject and subordinate to this Lease. For purposes hereof, the transfer or transferee or sale or sales (of a controlling interest in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty other entity constituting Tenant (50%other than transfers of interests via a public stock exchange) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring and Landlord's consent shall be required except as provided below. Notwithstanding the prior foregoing language of this Article to the contrary, provided that
(a) the Lease is in full force and effect,
(b) Tenant is not and has not at any time been in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time would result in a default under the Lease and
(c) the Affiliate (as defined below) shall assume, by written recordable instrument, in form and content satisfactory to Landlord (the "Assumption Document"), the due performance of all Tenant's obligations under this Lease, including any accrued obligations at the time of the assignment or subletting,
(d) At the time of the Permitted Transfer, the ultimate parent (if any) of the Affiliate shall guaranty the full performance of Tenant's obligations under the Lease in a form acceptable to Landlord, and
(e) Tenant provides Landlord with a Notice of Permitted Transfer (as described and in accordance with the provisions below), Landlord's consent shall not be required with respect to an assignment of Landlord as herein set forth. If this Lease be assigned or if subletting of the premises entire Premises or any part portion thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no an Affiliate for such assignment, subletting, occupancy or collection time as such entity remains an Affiliate. The foregoing shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant"Permitted Transfer".
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Section 25.01. Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, or thereof will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Leasecase, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written which consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitledunreasonably withheld, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7conditioned or delayed; provided, and so long as Tenant is not in default of any of the covenantshowever, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenantthat, if Tenant is a corporation, the assignment or transfer of all this Lease, and the term and estate hereby granted to any entity fifty-one (51%) percent or more of the ownership interests which is owned by Tenant, or to any entity that owns fifty-one (51%) percent or more of Tenant, if or to any corporation into which Tenant is a partnership, or (ii) a merger or consolidation of Tenant into merged or with any other which Tenant is consolidated (such corporation or business entity or (iiibeing hereinafter, in this Article 25, called an “Affiliate”) without the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which of Landlord shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreementdeemed to be prohibited hereby if, and satisfactory information with respect to upon the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlordexpress condition that, the proposed assignee is financially responsible with respect Affiliate shall have executed, acknowledged and delivered to its proposed obligations under the proposed assignment Landlord an agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form and substance reasonably satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement whereby the Affiliate shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee assume and agrees to assume all of the covenantsperform, agreements, terms, provisions and conditions of this Lease to be keptpersonally bound by and upon, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained set forth in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, and whereby the Affiliate shall expressly agree that if Tenant shall timely have complied with all the provisions of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee25 shall, Tenant shall be released from said Obligationsnotwithstanding such assignment or transfer, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or continue to be deemed binding upon it with respect to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantall future assignments and transfers.
Appears in 1 contract
Samples: Lease (Harris Interactive Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.01. Tenant shall not (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither assign or otherwise transfer this Lease nor or the term and estate hereby granted, nor (b) sublet the demised premises or any part hereof thereof or allow the same to be used or occupied by others or in violation of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of lawArticle 5, or otherwise)(c) mortgage, and that neither pledge or encumber this Lease or the premises, nor demised premises or any part thereof, will be encumbered thereof in any manner by reason of any act or omission on the part of TenantTenant without, in each instance, obtaining the prior consent of Landlord, except as otherwise expressly provided in this Article 11. Tenant shall not advertise, or will be used authorize a broker to advertise, for a subtenant or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be subletan assigns, without obtaining the prior written consent of Landlord in every case and any attempt thereat Landlord, which consent shall not be void any of no force unreasonably withhold or effectdelayed. For the purposes of this LeaseArticle 11, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or transferee of a corporate subtenant, or sale the transfer of a majority of the total interest in any partnership tenant or sales (subtenant, however accomplished, whether in either one a single transaction or in a series of related or unrelated transactions) , shall be deemed an assignment of fifty (50%) percent this Lease, or more of such sublease, as the case may be, except that the transfer of the outstanding capital stock of Tenantany corporate tenant, if Tenant is a corporation or fifty (50%) percent subtenant, shall be deemed not to include the sale of such stock by persons or more parties, through the "over-the-counter market" or through any recognized stock exchange, other than those deemed, "insiders" within the meaning of the ownership interests Securities Exchange Act of Tenant1934 as amended, if Tenant is a partnership or (ii) a merger takeover agreement shall be deemed a transfer of this Lease, (iii) any person or consolidation legal representative of Tenant into Tenant, to whom Tenant's interest under this Lease passes by operation of law, or with an other corporation or business entity shallotherwise, in each instance referred to in shall be bound by the preceding clauses (i) provisions of this Article 11, and (ii), iv) a material modification or amendment affecting the basic terms of a sublease or an extension thereof shall be deemed a sublease.
11.02. Notwithstanding anything to the contrary contained herein, Landlord's consent shall not be required and the terms and provisions of Section 11.01 hereof shall not be applicable with respect to an assignment of this Lease requiring or the prior written consent subletting of Landlord as herein set forth. If this Lease be assigned all or if a portion of the demised premises to any corporation or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 entity which shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assigneean "affiliate", subtenant or occupant as Tenant"subsidiary", or a release "successor" of Tenant (as sub-lessor or assignor from the further performance by Tenant of the covenantssuch terms are hereinafter defined), agreements, terms, provisions provided and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, condition that (x)
(i) in the event of an assignment, shall not the affiliate or subsidiary to Tenant or transferee has a net worth immediately following such transfer at any time be released, relieved least equal to or discharged by reason in excess of Landlord's consent the lesser of (A) the net worth of Tenant immediately prior to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnershiptransfer, or (B) the net worth of Tenant as of the date hereof, and (ii) in the event of a merger sublease, the affiliate, subsidiary or consolidation successor to Tenant or transferee has reasonably sufficient financial worth considering the financial obligations under the sublease and, in case of Tenant into or with any other corporation or business entity either (A) or (iii) the sale of all or substantially all of the assets of TenantB), assign this Leaseproof thereof, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (3010) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignmenttransfer, be jointly and severally liable (y) such transaction is for a bona fide business purpose and not, either directly or indirectly, principally for the performance purpose, of all of transferring the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate leasehold created hereby to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent a corporation or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name entity other than that of Tenantan affiliate, whether on the doors of the premises, on the Building directory, subsidiary or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenantsuccessor.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than as hereinbefore set forthstated in Article 1, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case. Such consent shall not, in the case of a proposed subletting, be unreasonably withheld or delayed. In connection with any request by Tenant for such consent, Tenant shall submit to Landlord, in writing, a statement containing all of the terms and any attempt thereat provisions upon which the proposed transaction is to occur. If the rent received by Tenant on account of a proposed assignment or sublease exceeds the Yearly Fixed Rent and Additional Rent, allocated to the space subject to the assignment or sublease in the proportion of the area of such space to the area of the entire Demised Premises, plus actual out-of-pocket expenses incurred by Tenant in connection therewith, including brokerage commissions and the cost of preparing such space for occupancy, Tenant shall be void any pay to Landlord fifty (50) percent of no force such excess, as received by Tenant. Notwithstanding the foregoing provisions of this paragraph, (1) in the event Tenant proposes to assign this Lease or effect. For enter into a sublease such that all or substantially all of the purposes Demised Premises will have been sublet, Landlord, at Landlord’s option, may give to Tenant, within thirty (30) days after the submission by Tenant to Landlord of such proposal, a notice terminating this Lease on the date (referred to as the “Earlier Termination Date”) immediately prior to the effective date of the proposed assignment or the proposed commencement date of the term of the proposed subletting, as set forth in such proposal, and, in the event such notice is given, this Lease and the Term shall come to an end and expire on the Earlier Termination Date with the same effect as if it were the date originally fixed in this Lease for the end of the Term of this Lease, and the Rent shall be apportioned as of said Earlier Termination Date and any prepaid portion of Rent for any period after such date shall be refunded by Landlord to Tenant, or (2) in the event Tenant proposes to sublet any portion of the Demised Premises such that more than 40% of the floor area of the Demised Premises will have been sublet, Landlord, at Landlord’s option, may give to Tenant, within thirty (30) days after the submission by Tenant to Landlord of the statement required to be submitted in connection with such proposed subletting, a notice electing to eliminate such portion of the Demised Premises (said portion is referred to as the “Eliminated Space”) from the Demised Premises during the period (referred to as the “Elimination Period”) commencing on the date (referred to as the “Elimination Date”) immediately prior to the proposed commencement date of the term of the proposed subletting, as set forth in such statement, and ending on the proposed expiration date of the term of the proposed subletting, as set forth in such statement, and in the event such notice is given (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of Eliminated Space shall be eliminated from the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of Demised Premises during the ownership interests of Tenant, if Tenant is a partnership or Elimination Period; (ii) a merger Tenant shall surrender the Eliminated Space to Landlord on or consolidation prior to the Elimination Date in the same manner as if said Date were the date originally fixed in this Lease for the end of Tenant into or with the Term of this Lease; (iii) if the Eliminated Space shall constitute less than an other corporation or business entity shallentire floor, Landlord, at Landlord’s expense, shall have the right to make any alterations and installations in the Demised Premises required, in each instance Landlord’s judgment, reasonably exercised, to make the Eliminated Space a self-contained rental unit with access through corridors to the elevators and core toilets serving the Eliminated Space, and if the Demised Premises shall contain any core toilets or any corridors (including any corridors proposed to be constructed by Landlord pursuant to this subdivision (iii) providing access from the Eliminated Space to the core area), Landlord and any tenant or other occupant of the Eliminated Space shall have the right to use such toilets and corridors in common with Tenant and any other permitted occupants of the Demised Premises, and the right to install signs and directional indicators in or about such corridors indicating the name and location of such tenant or other occupant; (iv) during the Elimination Period, the Yearly Fixed Rent shall be reduced in the proportion which the area of the Eliminated Space bears to the total area of the Demised Premises immediately prior to the Elimination Date (including an equitable portion of the area of any corridors referred to in subdivision (iii) of this sentence as part of the preceding clauses area of the Eliminated Space for the purpose of computing such reduction), and any prepaid Rent for any period after the Elimination Date allocable to the Eliminated Space shall be refunded by Landlord to Tenant; (iv) there shall be an equitable apportionment of any Additional Rent payable pursuant to Article 6 for the relevant fiscal and calendar years in which said Elimination Date shall occur; and (ii)vi) if the Elimination Period shall end prior to the date originally fixed in this Lease for the end of the Term of this Lease, the Eliminated Space, in its then existing condition, shall be deemed restored to be an assignment and once again a part of the Demised Premises subject to the provisions of this Lease requiring as if said elimination had not occurred during the prior written consent period (referred to as the “Restoration Period”) commencing on the date next following the expiration of the Elimination Period and ending on the date originally fixed in this Lease for the end of the Term of this Lease, except in the event that Landlord is unable to give Tenant possession of the Eliminated Space at the expiration of the Elimination Period by reason of the holding over or retention of possession of any tenant or other occupant, in which event (x) the Restoration Period shall not commence, and the Eliminated Space shall not be deemed restored to or a part of the Demised Premises, until the date upon which Landlord shall give Tenant possession of such Space free of occupancies, (y) neither the date fixed in this Lease for the end of the Term of the Lease, nor the validity of this Lease shall be affected, and (z) Tenant waives any right to recover any damages which may result from the failure of Landlord as herein set forth(despite the exercise of diligent efforts) to deliver possession of the Eliminated Space at the end of the Elimination Period. If At the request of Landlord, Tenant shall execute and deliver an instrument or instruments, in form satisfactory to Landlord, setting forth any modifications to this Lease be assigned contemplated in or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent resulting from the assigneeoperation of the foregoing provisions of this paragraph; however, subtenant neither Landlord’s failure to request any such instrument nor Tenant’s failure to execute or occupant, and apply deliver any such instrument shall vitiate the net amount collected effect of the foregoing provisions of this paragraph. The failure by Landlord to the rent herein reserved, but no such assignment, subletting, occupancy exercise its option under this Article with respect to any assignment or collection subletting shall not be deemed a waiver of such option with respect to any extension of such sublease or any subsequent assignment or subletting. Tenant shall reimburse Landlord promptly, as Additional Rent, for reasonable legal and other expense incurred by Landlord in connection with any request by Tenant for any consent required under the provisions of Tenant's covenants contained in this Article 7 Article. Notwithstanding the foregoing, Tenant may, following notice to Landlord but without the requirement of obtaining Landlord’s consent or elsewhere in affording Landlord an opportunity to terminate this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or eliminate any portion of the premises be subletDemised Premises therefrom or share any excess rent, the assignee or subtenant, all as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7hereinabove set forth, and so long as Tenant is not in default of hereunder beyond the applicable grace period, assign this Lease or sublease all or any portion of the covenantsDemised Premises to any entity which is controlled by, agreementsor which controls, termsor which is under common control with, provisions and conditions of Tenant, or assign this Lease on its part to be kept, observed and performed, any entity with which Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if may merge or consolidate or to which Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of may sell all or substantially all of its assets as a going concern or to which a controlling interest in the corporation or other entity constituting Tenant may be transferred (such entity with which Tenant may merge or consolidate or to which Tenant may sell all or substantially all of its assets of Tenant, assign this Lease, with Landlord's prior written consent or to which shall not a controlling interest in the corporation or other entity constituting Tenant may be unreasonably withheld or delayedtransferred as aforesaid being hereinafter referred to as a “Successor”), provided however that:
(c) , forthwith upon any assignment allowed pursuant to this paragraph, Tenant shall furnish deliver to Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment an agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form and substance reasonably satisfactory to Landlord for review which contains an appropriate covenant of assumption by Landlord's counselsuch assignee, and provided further that in the case of any such assignment agreement to a Successor, such Successor shall be delivered have financial resources and a general business reputation comparable to Landlord at least thirty (30) days prior to the effective date thereof. those of Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all as of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date time of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, Demised Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Demised Premises or to be deemed to be the written consent of Landlord mentioned in this Article 7Article, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant. If this Lease be assigned, or if the Demised Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent and other charges herein reserved, but no such 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 or occupancy 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 or occupancy.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Except as may be otherwise specifically provided in this Lease, the Tenant covenants and agrees, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise)transferred, and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any an act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, or offered or advertised for subletting, without the prior written consent of the Landlord in every such case and any attempt thereat shall be void any of no force provided, however, that, if the Tenant is a corporation, (a) the assignment or effect. For the purposes transfer of this Lease, and the term and estate hereby granted, to any corporation into which the Tenant is merged or with which the Tenant is consolidated (isuch corporation being hereinafter in this Article called "the Assignee") without the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more prior consent of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), Landlord shall not be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantprohibited hereby if, and apply upon the net amount collected express condition that, the Assignee shall have executed and delivered to the rent herein reservedLandlord an agreement in form and substance satisfactory to the Landlord whereby the Assignee shall agree to be personally bound by and upon all the covenants, but no such assignmentagreements, sublettingterms, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere provisions and conditions set forth in this Lease or on the acceptance part of the assigneeTenant to be kept, subtenant observed or occupant as Tenantperformed, and whereby the Assignee shall expressly agree that the provisions of this Article shall, notwithstanding such assignment or a release of transfer, continue to be binding upon it with respect to all future assignments and transfers, and (b) the Tenant as sub-lessor or assignor from the further performance by Tenant of may, subject to the covenants, agreements, terms, provisions and conditions of this Lease Lease, permit the premises to be used and occupied for the purposes herein specified by any subsidiary or affiliate of the Tenant without the prior consent of the Landlord. The Landlord will, at the request of the Tenant, maintain listings on the part Building directory of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations names of the parties to this Lease Tenant and any other person, firm or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth corporation in this Lease. If this Lease be assigned or if all or any portion occupancy of the premises be sublet, the assignee or subtenant, any part thereof as the case may be, shall have no rightpermitted hereunder, and shall not be entitled, to exercise the names of any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default officers or employees of any of the covenantsforegoing, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant the number of names so listed shall timely have complied with all be in the same proportion to the capacity of the conditions set forth in this Article 7 and Landlord has approved (in writing) Building directory as the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date aggregate number of square feet of rentable area of the assignment premises is to the aggregate number of this Leasesquare feet of rentable area of the Building. The listing of any name other than that of the Tenant, whether on the doors or windows of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of the Landlord mentioned in this Article 7Article, it being expressly understood that any such listing (other than a listing conforming with the next preceding sentence hereof) is a privilege extended by the Landlord revocable at will by written notice to the Tenant. 44 Rider "B" attached to and forming a part of Lease dated July 15, 1992 between ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY, INC., as the Tenant. Also if the premises or a part thereof are rendered untenantable as a result of such damage by fire or other casualty (including untenantability due to lack of access thereto) and such damage is not repaired by the Landlord within 1 year after the occurrence thereof, then this Lease and the term and estate hereby granted may be terminated by the Tenant by its giving to the Landlord within 60 days after the end of such 1 year period notice specifying a date, not more than 30 days after the giving of such notice, for such termination.
Appears in 1 contract
Samples: Sublease (Abacus Direct Corp)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesBuilding, the Property nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than Use of the Premises as hereinbefore set forthstated in the Article contained herein entitled “REFERENCE DATA”, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case case. Landlord agrees not to unreasonably withhold, delay or condition such consent provided that
(a) the Lease is in full force and effect, (b) Tenant is not and has not at any time been in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a default under the Lease, (c) the financial worth of the proposed assignee or subtenant is satisfactory to Landlord, and (d) any assignee or subtenant of the entire Premises shall assume, by written recordable instrument, in form and content satisfactory to Landlord, Tenant and any attempt thereat such subtenant or assignee, all acting reasonably, the due performance of all Tenant's obligations under this Lease, including any accrued obligations at the time of the assignment or subletting of the entire Premises or, in the case where a subtenant subleases a portion of the Premises, such subtenant acknowledges that the sublease is subject and subordinate to this Lease. For purposes hereof, the transfer of a controlling interest in the corporation or other entity constituting Tenant shall be void any of no force or effect. For the purposes deemed an assignment of this Lease. Notwithstanding the foregoing language of this Article to the contrary, provided that
(a) the Lease is in full force and effect,
(b) Tenant is not at the time of the effective date of a Permitted Transfer in default under the Lease beyond any applicable notice and cure period and has not at any time during the immediately preceding 12 months been in default under the Lease beyond any applicable notice and cure period and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a default under the Lease and
(c) the Affiliate (as defined below) shall assume, by written recordable instrument, in form and content satisfactory to Landlord (the "Assumption Document"), the due performance of all Tenant's obligations under this Lease, including any accrued obligations at the time of the assignment or subletting,
(d) At the time of the Permitted Transfer, the ultimate parent (if any) of the Affiliate shall guaranty the full performance of Tenant's obligations under the Lease in a form acceptable to Landlord (an “Ultimate Parent Guaranty”) (provided, however, that, in the event an Ultimate Parent Guaranty is in Tenant’s reasonable judgement infeasible, inapplicable or otherwise not available and Landlord’s insistence on an Ultimate Parent Guaranty would in Tenant’s reasonable judgment prevent or unreasonably complicate the transaction giving rise to the contemplated Permitted Transfer, (i) the transfer in addition to all other information to be provided by Tenant to Landlord in conjunction with a Permitted Transfer, Tenant shall provide reasonable information and explanations to Landlord as to why an Ultimate Parent Guaranty is infeasible, inapplicable or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenantotherwise not available, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) an Ultimate Parent Guaranty shall not be a merger or consolidation condition of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) applicable Permitted Transfer and (iiiii) the following shall apply. If the net worth of the assignee or subtenant Affiliate falls materially below the net worth of such Affiliate as of the date the financial information was provided to Landlord in conjunction with the applicable Permitted Transfer event, whether because of a transfer of assets by a parent entity or otherwise, (A) Tenant agrees to notify Landlord, (B) Landlord reserves the right to then require reasonable additional Tenant credit enhancement, including, without limitation, a guaranty of the Lease by another Tenant affiliated entity with a suitable net worth, a letter of credit, or some other commercially reasonable means of credit enhancement, and (C) Tenant agrees to cooperate and coordinate with Landlord in providing such guaranty, letter of credit or other credit enhancement) , and
(e) Tenant provides Landlord with a Notice of Permitted Transfer (as described and in accordance with the provisions below), Landlord's consent shall not be deemed required with respect to be an assignment of this Lease requiring or subletting of the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises entire Premises or any part portion thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no an Affiliate for such assignment, subletting, occupancy or collection time as such entity remains an Affiliate. The foregoing shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant"Permitted Transfer".
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant 17.1 TENANT covenants and agrees, agrees for Tenant TENANT and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of or law, or otherwise), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of TenantTENANT, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than TenantTENANT, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord OWNER in every case and any attempt thereat shall be void any case; except Tenant may sublet to a subsidiary of no force or effect. For Communication Development Concepts ---------------------------------- without written consent of OWNER, however, TENANT will remain primarily liable to OWNER in the purposes event of a sublet provided, however, that if TENANT is a corporation, the assignment of transfer of this Lease, and the term and estate hereby granted, to any corporation into which TENANT is merged or with which TENANT is consolidated (isuch corporation being hereinafter in this Section 17 called "Assignee") without the prior written consent of OWNER shall not be deemed to be prohibited hereby if, and upon the express condition that, Assignee shall promptly execute, acknowledge and deliver to OWNER an agreement in form and substance satisfactory to OWNER whereby Assignee shall assume and agree to perform and to be personally bound by and upon, all 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 17 shall, notwithstanding such assignment or transfer, continue to be binding upon it with respect to all future assignments and transfers. A transfer of fifty percent or transferee greater interest (whether stock, partnership interest or sale or sales (in either one or a series of transactionsotherwise) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), TENANT shall be deemed to be an assignment of this Lease, either in one transaction or in any series of transactions within a fourteen month period.
17.1.1 Owner hereby consents to an assignment from Xxxxxx Xxxx and Xxxxxxxx Xxxxxxx d/b/a Communication Development Concepts to a corporation to be formed; provided Xxxxxx Xxxx and Xxxxxxxx Xxxxxxx execute the guaranty which is attached hereto as Exhibit C. ---------
17.2 Notwithstanding anything hereinbefore contained in Section 17.1 hereof, in the event TENANT desires OWNER'S consent to an assignment or subletting of all or any part of the Premises, TENANT by notice in writing, (a) shall notify OWNER of the name of the proposed assignee or subtenant, such information as to the proposed assignee's or subtenant's financial responsibility and standing as OWNER may require, and of the covenants, agreements, terms, provisions and conditions contained in the proposed assignment or sublease, and (b) shall offer to vacate the space covered by the proposed area to be subleased (whether all or part of the Premises) or the entire Premises in the event of an assignment (as the case may be) and to surrender the same to OWNER as of a date (the "Surrender Date") specified in said offer which shall be the last days of any calendar month during the term hereof, provided, however, that the Surrender Date shall not be earlier than the date occurring 120 days after the giving of such notice nor be earlier than the effective date of the proposed assignment or the commencement date of the term of the proposed sublease. OWNER may accept such offer by notice to TENANT given within 60 days after the receipt of such receipt of such notice from TENANT. If OWNER accepts such offer TENANT shall surrender to OWNER, effective as of the Surrender Date, all TENANT'S right, title and interest in and to the portion of the Premises covered by the proposed sublease, or, if TENANT proposes to sublet the entire Premises, or assigns this Lease, all TENANT'S right, title and interest in and to the entire Premises. In the event of such surrender by TENANT of a portion of the Premises then effective as of the date immediately following the Surrender Date, the Basic Rent payable by TENANT under this Lease requiring shall be reduced by an amount equal to that portion of the prior Basic Rent payable under this Lease which is allocable to the space so surrendered and the Additional Rent payable by TENANT under this Lease shall be equitable adjusted. If the entire Premises be so surrendered by TENANT, this Lease shall be canceled and terminated as of the Surrender Date with the same force and effect as if the Surrender Date were the date hereinbefore specified for the expiration of the full term of this Lease. In the event of such surrender by TENANT of a portion of the Premises, any changes, improvements and alterations to the space constituting the Premises after the Surrender Date (i.e., the space not so surrendered by TENANT) or any part thereof (including, but not limited to, the erection of a demising wall to separate space constituting the Premises after the Surrender Date from the space so surrendered) made necessary or desirable by reason of such surrender shall be made by OWNER at TENANT'S expense. TENANT covenants and agrees that, in the event of such surrender by TENANT of a portion of the Premises, TENANT, at TENANT'S expense, shall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such portion of the Premises so surrendered), permit the occupant or occupants of such portion the use of the core facilities on said floor, and permit on said floor reasonably appropriate directional signs for each occupant or occupants and appropriate designations in the elevators serving said floor. In the event of any such surrender by TENANT of the Premises or a portion thereof, OWNER and TENANT shall, at the request of either party, execute and deliver an agreement to the effect(s) hereinbefore stated.
17.3 In the event OWNER does not accept such offer of TENANT referred to in Section 17.2 hereof, OWNER covenants not to unreasonably withhold its consent to such proposed assignment or subletting by TENANT of such space to the proposed assignee or subtenant on said covenants, agreement, terms, provisions and conditions set forth in the notice to OWNER referred to in clause (a) of the first sentence of Section 17.2 hereof; provided, however, that OWNER shall not in any event be obligated to consent to any such proposed assignment or subletting unless:
17.3.1 the proposed assignee, or subtenant is satisfactory to OWNER of a financial standing and engaged in a business and the Premises will be used in a manner which is in keeping with then standard of the Tower and the proposed assignment or subletting does not violate any negative covenants as to use contained in any other lease made between OWNER and other tenant(s) of the Tower;
17.3.2 the proposed assignee or subtenant is a reputable party;
17.3.3 the proposed assignee, or subtenant is not then a tenant or occupant of any part of the Building or a corporation or other entity which controls or is controlled by such tenant or occupant or is under common control with such tenant or occupant;
17.3.4 OWNER shall have the right upon five (5) days' notice to TENANT, to require TENANT thereafter to pay to OWNER a sum equal to (i) any rent or other consideration paid to TENANT by any subtenant which is in excess of the Basic Rent and Additional Rent then being paid by TENANT to OWNER pursuant to the terms of this Lease, and (ii) any such profit or gain realized by TENANT from any such assignment or subletting; all sums payable hereunder by TENANT shall be paid to OWNER as Additional Rent immediately upon receipt thereof by TENANT and if requested by OWNER, TENANT shall promptly enter into a written agreement with OWNER setting forth the amount of Additional Rent to be paid to OWNER pursuant to this Section 17.3.4, (if only part of the Premises is sublet, then the rent paid therefor by TENANT to OWNER shall be deemed to be that fraction thereof that the area of said sublet space bears to the entire Premises);
17.3.5 there shall be no default by TENANT under any of the terms, covenants and conditions of this Lease at the time that OWNER'S consent to any such assignment or subletting is requested and on the effective date of Landlord the assignment or the proposed sublease;
17.3.6 the proposed assignee or subtenant shall not be a government or any subdivision or agency thereof;
17.3.7 TENANT shall reimburse OWNER for any reasonable expenses that may be incurred by OWNER in connection with the proposed assignment or sublease, including without limitation the reasonable costs of making investigations as herein set forthto the acceptability of a proposed assignee or subtenant and reasonable costs of making investigations as to the acceptability of a proposed assignee or subtenant and reasonable legal expenses incurred in connection with the granting of any requested consent to the assignment or sublease;
17.3.8 the proposed assignment shall be for a consideration or the proposed subletting shall be at a rental rate not less than the rental rates then being charged under leases being entered into by OWNER for comparable space in the Tower and for a comparable term and in no event shall TENANT advertise or list with brokers at such lower rental rate;
17.3.9 the space to be sublet shall be regular in shape with appropriate means of ingress and egress and suitable for normal renting purposes.
17.4 Each subletting pursuant to this Section 17 shall be subject to all the covenants, agreements, terms, provisions and conditions contained in this Lease. TENANT covenants and agrees that, notwithstanding such assignment or any such subletting to any subtenant and/or acceptance of Basic Rent or Additional Rent by OWNER from any subtenant, TENANT shall and will remain fully liable for the payment of the Basic Rent and Additional Rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of TENANT to be performed. TENANT further covenants and agrees that notwithstanding any such assignment or subletting, no other further assignment, underletting or subletting of the Premises or any part thereof shall or will be made except upon compliance with and subject to the provisions of this Section 17. TENANT shall promptly furnish to OWNER a copy of each such sublease.
17.5 If this Lease be assigned assigned, or if the premises Premises or any part thereof by be sublet or occupied by anybody other than TenantTENANT, Landlord OWNER may, after default by TenantTENANT, collect 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 or by OWNER of any of Tenant's TENANT'S covenants contained in this Article 7 or elsewhere in this Lease Section 17 or the acceptance of the assignee, subtenant or occupant as TenantTENANT, or a release of Tenant as sub-lessor or assignor TENANT from the further performance by Tenant TENANT of the covenants, agreements, terms, provisions and conditions of this Lease covenants on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by TenantTENANT herein contained.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Office Lease (Call Points Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) 36.1 Tenant expressly covenants and agreesagrees that it shall not, for Tenant and its successorsdoes not have the right or power to, assigns and legal representativesassign, that neither mortgage, pledge, encumber, hypothecate or otherwise transfer this Lease nor the term and estate hereby grantedor any interest of Tenant herein, nor sublet all or any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered the Demised Premises or otherwise transferred (whether voluntarily, involuntarily, by operation of law, suffer or otherwise), and that neither permit the premises, nor Demised Premises or any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted thereof to be used or occupied, or utilized occupied by others (whether for desk space or for space, mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be subletotherwise), without the prior written consent of Landlord in every case and each instance.
36.2 If Tenant shall at any attempt thereat time or times during the term of this Lease desire to assign this Lease or sublet all or any part of the Demised Premises, Tenant shall give notice thereof to Landlord which notice shall be void deemed an offer from Tenant to Landlord whereby Landlord shall have the option to terminate this Lease (as to a sublease of less than all or substantially all of the Demised Premises, to terminate this Lease only as to the portion of the Demised Premises which Tenant desires to sublet). Said option may be exercised by Landlord by notice to Tenant at any of no force or effecttime within forty-five (45) days after the aforesaid notice has been given by Tenant to Landlord and during such forty-five (45) day period Tenant shall not assign this Lease nor sublet such space to any person. For the purposes of If Landlord exercises its option to terminate this Lease, this Lease shall end and expire on the date set forth in Landlord's notice, which date (ithe "Surrender Date") shall be the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more last day of the capital stock calendar month in which occurs the date which is one hundred twenty (120) days after the date of Landlord's notice, and the fixed rent and a coitional rent hereunder shall be paid and apportioned to such date,
36.3 If Landlord exercises its option to terminate this Lease pursuant to Section 36.2, Landlord shall be free to, and shall have no liability to Tenant if Landlord should, lease the Demised Premises (or any part thereof) to Tenant's prospective assignee or subtenant. In the event of such surrender by Tenant of a portion of the Demised Premises, effective as of the date immediately following the Surrender Date, the fixed rent payable by Tenant under this Lease shall be reduced by an amount equal to that portion of the fixed rent payable under this Lease which is allocable to the space so surrendered and the additional rent payable by Tenant under this Lease shall be equitably adjusted, If the entire Demised Premises be so surrendered by Tenant, if Tenant is a corporation or fifty (50%) percent or more this Lease shall be canceled and terminated as of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or Surrender Date with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) same force and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord effect as herein set forth. If this Lease be assigned or if the premises Surrender Date were the date herein specified for the expiration of the full term of Lease, In the event of such surrender by Tenant of a portion of the Demised Premises, any changes, improvements and alterations to the space constituting the Demised Premises after the Surrender Date (i.e., the space not so surrendered by Tenant) or any part thereof by sublet or occupied by anybody other than Tenant(including, Landlord maybut not limited to, the erection of a demising wall to separate the space constituting the Demised Premises after default by Tenant, collect rent the Surrender Date from the assignee, subtenant space so surrendered) made necessary or occupant, and apply the net amount collected to the rent herein reserved, but no desirable by reason of such assignment, subletting, occupancy or collection surrender shall be deemed a waiver or any of made by Landlord at Tenant's expense. Tenant covenants contained and agrees that, in this Article 7 or elsewhere in this Lease or the acceptance event of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance such surrender by Tenant of a portion of the Demised Premises, Tenant, at Tenant's expense, shall and will at all times provide and permit reasonably appropriate means of ingress to and egress from such portion of the Demised Premises so surrendered, permit the occupant or occupants of such portion the use of the core facilities on said floor, and permit on said floor reasonably appropriate directional signs for each occupant or occupants and appropriate designations in the passenger cabs serving said floor. In the event of any such surrender by Tenant the Demised Premises or a portion thereof, Landlord and Tenant shall, at the request of either party, execute and deliver an agreement in recordable form to the effect hereinbefore stated.
36.4 In the event Landlord does not exercise or timely exercise the option referred to in Section 36.2 hereof, Landlord covenants not to unreasonably withhold or delay its consent to such proposed assignment or subletting by Tenant of such space to the proposed assignee or subtenant on said covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease the notice to Landlord referred to in Section 36.2, provided, however, that Landlord shall not in any event be assigned obligated to consent to any such proposed assignment or if subletting unless all or any portion of the premises be sublet, following conditions are satisfied:
(a) the proposed assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant subtenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or financial standing and (ii) engaged in a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, reasonably satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged the premises will be used in a business, manner which is in keeping with the then standards of the Building and the proposed assignment or subletting does not violate any negative covenants as to use contained in any other lease made between Landlord and other tenant(s) of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writingb) the proposed assigneeassignee or subtenant is a reasonably reputable party; (c) the proposed assignee or subtenant is not then a tenant, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing subtenant or othhrwise an occupant of any name part of The Chrysler or Building or Building or a corporation or other than that of Tenantentity which controls or is controlled by such tenant, whether on the doors of the premisessubtenant or occupant or is under common control with such tenant, on the Building directory, subtenant or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.occupant;
Appears in 1 contract
Samples: Lease (Merit Behavioral Care Corp)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than as hereinbefore set forthstated in Article 1, or will be sublet, or offered or advertised for subletting, without the prior written consent of Landlord in every case and any attempt thereat except as otherwise hereinafter set forth. Such consent shall not, in the case of a proposed subletting of the Demised Premises, be unreasonably withheld or delayed. For purposes hereof, the transfer of a controlling interest in the corporation or other entity constituting Tenant shall be void any of no force or effect. For the purposes deemed an assignment of this Lease. In connection with any request by Tenant for such consent, (i) Tenant shall submit to Landlord, in writing, a statement containing the transfer name of the proposed assignee, subtenant or transferee other third party, such information as to its financial responsibility and standing as Landlord may require, and all of the terms and provisions upon which the proposed transaction is to occur. If the rent and other consideration received by Tenant on account of an assignment or sale or sales (sublease exceeds the Yearly Fixed Rent and Additional Rent, allocated to the space subject to any such sublease in either one or a series the proportion of transactions) the area of such space to the area of the entire Demised Premises, plus actual out-of-pocket expenses reasonably incurred by Tenant in connection therewith, including brokerage commissions, attorneys’ fees and the cost of preparing such space for occupancy, Tenant shall pay to Landlord fifty percent (50%) percent or more of the capital stock of such excess within ten (10) days following receipt from time to time by Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity . Such expenses shall, in each instance referred to in the preceding clauses (i) and (ii)case of a sublease, be deemed amortized on a so-called “straight-line” basis over the term thereof. In the event Tenant proposes to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in assign this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or enter into a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to sublease such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of that all or substantially all of the assets of TenantDemised Premises will have been sublet, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior Landlord’s option, may give to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.within thirty
Appears in 1 contract
Samples: Lease Agreement (Viryanet LTD)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, or otherwise), and that neither the premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case and any attempt thereat shall be void any of no force or effect. For the purposes of this Lease, (i) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with LandlordXxxxxxxx's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of LandlordXxxxxxxx, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by LandlordXxxxxxxx's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
Samples: Lease Agreement
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees36.01 Subject to Section 36.02, for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of thereof, will or thereof shall be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, law or otherwise), and that neither the premisesDemised Premises, nor any part thereofthereof shall be subleased, will be licensed, be used or occupied by any person or entity other than Tenant or be encumbered in any manner by reason of any act or omission on the part of Tenant, and no rents or will other sums receivable by Tenant under any sublease of all or any part of the Demised Premises shall be used assigned or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concession, by anyone other than Tenant, or for any purpose other than as hereinbefore set forth, or will be subletotherwise encumbered, without the prior written consent of Landlord in every case and any attempt thereat shall be void any Landlord. The dissolution or direct or indirect transfer of no force or effect. For the purposes of this Lease, Control (i) the transfer or transferee or sale or sales (in either one or a series of transactionsas defined below) of fifty Tenant (50%) percent however accomplished including, by way of example, the admission of new partners or more members or withdrawal of the capital stock existing partners or members, or transfers of interests in distributions of profits or losses of Tenant, if Tenant is a corporation issuance of additional stock, redemption of stock, stock voting agreement, or fifty (50%change in classes of stock) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), shall be deemed to be an assignment of this Lease requiring regardless of whether the transfer is made by one or more transactions, or whether one or more persons or entities hold the controlling interest prior written consent to the transfer or afterwards. An agreement under which another person or entity becomes responsible for all or a portion of Landlord as herein set forth. If Tenant’s obligations under this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 an assignment of this Lease. No assignment or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions other transfer of this Lease on and the part term and estate hereby granted, and no subletting of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, Demised Premises shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as relieve Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations liability under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or of the obligation to obtain Landlord’s prior consent to any further assignment, other transfer or subletting. Any attempt to assign this Lease or sublet all or any portion of the Demised Premises in the premises or to be deemed to be the written consent violation of Landlord mentioned in this Article 736 shall be null and void. “Control” (and with correlative meaning, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.“controlled by” and “under common control with”) means
Appears in 1 contract
Samples: Lease Agreement (Tangoe Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant Sublessee covenants and agreesagrees that except as otherwise expressly provided herein, for Tenant and its successors, assigns and legal representatives, that neither this Lease Sublease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesSublease Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of TenantSublessee, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than TenantSublessee, or for any use or purpose other than as hereinbefore set forthpermitted hereunder, or will be sublet, or offered or advertised for subletting, without the prior written consent of Sublessor and Landlord in every case and any attempt thereat case, which consent shall not be void any of no force unreasonably conditioned, withheld or effectdelayed. For the purposes of this LeaseSublessor's consent shall not be considered unreasonably withheld, delayed or conditioned if: (i1) the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 or any of Tenant's covenants contained in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignmenta proposed transfer, shall not at any time the proposed transferee's financial condition is such that, in the reasonable judgment of Sublessor, such proposed transferee will be releasedunable to fulfill all of its obligations under the Sublease or the sub-sublease, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations as applicable for the remainder of the parties Term or the term of the sub-sublease, as applicable; (2) the proposed transferee's business is not suitable for the Building considering the business of the other tenants and the Building's prestige or would result in a violation of an exclusive right granted to this Lease another tenant in the Building; (3) the proposed use is different than the Permitted Use; (4) the proposed transferee is a government agency or by any stipulation extending any time for performance hereunder or Landlord's waiver occupant of performance the Building; (5) Sublessee is in default after the giving of any obligation hereunder or Landlord's failure to enforce any obligation the applicable notice and the expiration of the applicable grace period set forth in this Lease. If this Lease be assigned herein; or if all or (6) any portion of the premises Building or Sublease Premises would become subject to additional or different governmental laws or regulations as consequence of the proposed transfer and/or the proposed transferee's use and occupancy of the Sublease Premises. Notwithstanding the foregoing, Sublessor will not withhold its consent solely because the proposed subtenant or assignee is an occupant of the Building if Sublessor does not have space available for lease in the Building that is 37 44 comparable to the space Sublessee desires to sublet or assign and available for the length of term requested by such subtenant or assignee. Sublessee acknowledges that the foregoing is not intended to be an exclusive list of the reasons for which Sublessor may reasonably withhold its consent to a proposed transfer. Any attempted transfer in violation of the terms of this Section shall, at Sublessor's option, be void. Consent by Sublessor to one or more transfers shall not operate as a waiver of Sublessor's rights as to any subsequent transfers. In addition, Sublessee shall not, without Sublessor's consent, publicly advertise the proposed rental rate for any transfer. For purposes of this Sublease, transfer shall mean the assignment (collateral or otherwise), mortgage, sublease, transfer, pledge or encumbrance by Sublessee of this Sublease or any interest therein or the grant by Sublessee of any license, concession or other right of occupancy of the Sublease Premises or any portion thereof. If Sublessee requests Sublessor's consent to a transfer, Sublessee, together with such request for consent, shall provide Sublessor with the name of the proposed transferee and the nature of the business of the proposed transferee, the term, use, rental rate and all other material terms and conditions of the proposed transfer, including, without limitation, a copy of the proposed assignment, sublease or other contractual documents and evidence reasonably satisfactory to Sublessor that the proposed transferee is financially responsible. Notwithstanding Sublessor's agreement to act reasonably under this Section, Sublessor may, within forty-five (45) days after its receipt of all information and documentation required herein, either (1) consent to or reasonably refuse to consent to such transfer in writing; or (2) if Sublessee proposes to sublease or assign more than 1/3 of the Sublease Premises to a third-party, cancel and terminate this Lease with respect to the portion of the Sublease Premises that Sublessee proposes to assign or sublet, upon forty-five (45) days' notice, in accordance with the assignee or subtenantrecapture provisions set forth below. Notwithstanding the foregoing, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant provided Sublessee is not in default after the giving of any notice and the expiration of the covenantsapplicable grace period set forth herein, agreementsSublessee shall have the right to make without Sublessor's prior written consent, termsbut with prior written notification to Sublessor, provisions and conditions of this Lease on its part one or more transfers to be kept(a) a parent, observed and performedsubsidiary, Tenant may, in connection an entity under common control with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporationSublessee, or division of all of the ownership interests of TenantSublessee, if Tenant is a partnership(b) any entity with which or into which Sublessee may consolidate or merge, or (iic) a merger any person or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of acquiring all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayedSublessee, provided that:
(c) Tenant shall furnish Landlord , simultaneously with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises any such transfer if such transfer shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate originalassignment, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement Sublessee shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, Sublessor an assumption agreement in form and substance reasonably satisfactory to Landlord wherein the assignee agrees to assume Sublessor which contains an appropriate covenant of assumption by such transferee of all of the covenants, agreements, terms, provisions obligations arising under this Sublease from and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment; and provided further that Sublessee shall have submitted to Sublessor prior thereto financial statements or other materials reasonably satisfactory to Sublessor evidencing that such transferee has financial resources necessary to fulfill its obligations under the Sublease or the sub-sublease, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
as applicable. The foregoing transfers (ga) each assignment - (c) shall be subject and subordinate referred to all of the covenants, agreements, terms, provisions and conditions of this Lease and the herein as "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, (permitted transfers"Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.
Appears in 1 contract
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Tenant covenants and agrees, for Tenant and its successors, assigns and legal representatives, agrees that neither this Lease nor the term and estate hereby granted, granted nor any part hereof of thereofinterest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, voluntarily or by operation of law, or otherwise), and that neither the premisesDemised Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for mailing privileges or as a concessionany reason whatsoever, by anyone other than Tenant, or for any use or purpose other than as hereinbefore set forthstated in Article 1, or will be sublet, without the prior written consent of Landlord in every case. Such consent shall not, in the case of a proposed subletting, be unreasonably withheld or delayed. In connection with any request by Tenant for such consent, Tenant shall submit to Landlord, in writing, a statement containing all of the terms and any attempt thereat provisions upon which the proposed transaction is to occur. If the rent received by Tenant on account of a proposed assignment or sublease requiring such consent exceeds the Yearly Fixed Rent and Additional Rent, allocated to the space subject to the assignment or sublease in the proportion of the area of such space to the area of the entire Demised Premises, plus actual out-of-pocket expenses incurred by Tenant in connection therewith, including brokerage commissions, marketing expenses and the cost of preparing such space for occupancy, Tenant shall be void any pay to Landlord one hundred (100) percent of no force such excess, as received by Tenant. Notwithstanding the foregoing provisions of this paragraph and except as otherwise hereinafter set forth, in the event Tenant proposes to assign this Lease or effect. For enter into a sublease such that all or substantially all of the purposes Demised Premises will have been sublet, Landlord, at Landlord's option, may give to Tenant, within thirty (30) days after the submission by Tenant to Landlord of such proposal, a notice terminating this Lease on the date (referred to as the "Earlier Termination Date") immediately prior to the effective date of the proposed assignment or the proposed commencement date of the term of the proposed subletting, as set forth in such proposal, and, in the event such notice is given, this Lease and the Term shall come to an end and expire on the Earlier Termination Date with the same effect as if it were the date originally fixed in this Lease for the end of the Term of this Lease, (i) and the transfer Rent shall be apportioned as of said Earlier Termination Date and any prepaid portion of Rent for any period after such date shall be refunded by Landlord to Tenant. The failure by Landlord to exercise its option under this Article with respect to any assignment or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect 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 subletting shall not be deemed a waiver of such option with respect to any extension of such sublease or any of Tenant's covenants contained subsequent assignment or subletting. Tenant shall reimburse Landlord promptly, as Additional Rent, for reasonable legal and other expense incurred by Landlord in this Article 7 or elsewhere in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance connection with any request by Tenant of for any consent required under the covenants, agreements, terms, provisions and conditions of this Lease on Article. Notwithstanding the part foregoing, Tenant may, following notice to Landlord but without the requirement of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of obtaining Landlord's consent or affording Landlord an opportunity to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in terminate this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of beyond the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) applicable grace or cure period at the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, time of such assignment agreement shall be delivered to Landlord notice or at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon time thereafter until the effective date of the assignment or the commencement date of the term of the subletting (as the case may be), assign this LeaseLease or sublease all or any portion of the Demised Premises to any entity which is a parent, subsidiary or affiliate of Tenant or assign this Lease to any entity with which Tenant may merge or consolidate or which results from any such merger or consolidation or to which Tenant may sell all or substantially all of its assets as a going concern (such entity with which Tenant may merge or consolidate or which results from any such merger or consolidation or to which Tenant may sell all or substantially all of its assets as aforesaid being hereinafter referred to as a "Successor"), provided however that, forthwith upon any assignment allowed pursuant to this paragraph, Tenant shall deliver to Landlord an agreement in form and substance reasonably satisfactory to Landlord which contains an appropriate covenant of assumption by such assignee, and provided further that in the case of any such assignment to a Successor, such Successor shall have financial resources and a general business reputation comparable to those of Tenant as of the time of such assignment. The listing of any name other than that of Tenant, whether on the doors of the premises, Demised Premises or on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises Demised Premises or to be deemed to be the written consent of Landlord mentioned in this Article 7Article, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant. If this Lease be assigned, or if the Demised Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may at any time and from time to time following any default by Tenant hereunder beyond the applicable grace period, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent and other charges herein reserved, but no such 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 or occupancy 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 or occupancy.
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ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) Except as may be otherwise specifically provided in this Lease, the Tenant covenants and agrees, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law, 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 on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, or offered or advertised for subletting, without the prior written consent of the Landlord in every case and any attempt thereat shall be void any of no force such case; provided, however, that, if the Tenant is a corporation, (a) the assignment or effect. For the purposes transfer of this Lease, and the term and estate hereby granted, to any corporation into which the Tenant is merged or with which the Tenant is consolidated (isuch corporation being hereinafter in this Article called "the Assignee") without the transfer or transferee or sale or sales (in either one or a series of transactions) of fifty (50%) percent or more prior consent of the capital stock of Tenant, if Tenant is a corporation or fifty (50%) percent or more of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall, in each instance referred to in the preceding clauses (i) and (ii), Landlord shall not be deemed to be an assignment of this Lease requiring the prior written consent of Landlord as herein set forth. If this Lease be assigned or if the premises or any part thereof by sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupantprohibited hereby if, and apply upon the net amount collected express condition that, the Assignee shall have executed, acknowledged and delivered to the rent herein reservedLandlord an agreement in form and substance satisfactory to the Landlord whereby the Assignee shall agree to be personally bound by and upon all the covenants, but no such assignmentagreements, sublettingterms, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained in this Article 7 or elsewhere provisions and conditions set forth in this Lease or on the acceptance part of the assigneeTenant to be kept, subtenant observed or occupant as Tenantperformed, and whereby the Assignee shall expressly agree that the provisions of this Article shall, notwithstanding such assignment or a release of transfer, continue to be binding upon it with respect to all future assignments and transfers, and (b) the Tenant as sub-lessor or assignor from the further performance by Tenant of may, subject to the covenants, agreements, terms, provisions and conditions of this Lease Lease, permit the premises to be used and occupied for the purposes herein specified by any subsidiary of the Tenant without the prior consent of the Landlord. The Landlord will, at the request of the Tenant, maintain listings on the part Building directory of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations names of the parties to this Lease Tenant and any other person, firm or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth corporation in this Lease. If this Lease be assigned or if all or any portion occupancy of the premises be sublet, the assignee or subtenant, any part thereof as the case may be, shall have no rightpermitted hereunder, and shall not be entitled, to exercise the names of any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default officers or employees of any of the covenantsforegoing, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and performed, Tenant may, in connection with (i) the sale of all of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or (ii) a merger or consolidation of Tenant into or with any other corporation or business entity or (iii) the sale of all or substantially all of the assets of Tenant, assign this Lease, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address of the proposed assignee, a counterpart of the proposed assignment agreement, and satisfactory information with respect to the nature and character of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and references, including banking references, satisfactory to Landlord;
(d) in the judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and is of a character and reputation, and engaged in a business, which is in keeping with the standards of the Building;
(e) the premises shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior to the effective date thereof. Tenant will also deliver to Landlord, at least thirty (30) days prior to the effective date thereof, an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease to be kept, observed and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant the number of names so listed shall timely have complied with all be in the same proportion to the capacity of the conditions set forth in this Article 7 and Landlord has approved (in writing) Building directory as the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date aggregate number of square feet of rentable area of the assignment premises is to the aggregate number of this Leasesquare feet of rentable area of the Building. The listing of any name other than that of the Tenant, whether on the doors or windows of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of the Landlord mentioned in this Article 7Article, it being expressly understood that any such listing (other than a listing conforming with the next preceding sentence hereof) is a privilege extended by the Landlord revocable at will by written notice to the Tenant.
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ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. (a) The Tenant covenants and agreescovenants, for the Tenant and its successors, assigns and legal representatives, that neither this Lease nor the term and estate hereby granted, nor any part hereof of or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarilyit being agreed that the (x) issuance by the Tenant of stock and/or the transfer of already-issued stock/partnership interests, involuntarilyin one or more transactions so as to transfer control or transfer 50% or more of an interest in the Tenant, other than through over-the-counter or national securities exchange transactions by operation those holding less than a 5% interest in the Tenant or (y) sale or transfer of law50% or more of the assets of the Tenant in one or more transactions, or otherwiseother than in the ordinary course of business, shall, in either event, be deemed an assignment of this Lease), and that neither the premisesPremises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of the Tenant, or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or space, for mailing privileges or as a concession, by anyone other than the Tenant, or for any purpose other than as hereinbefore set forth, or will be sublet, without or offered or advertised for subletting, except in each case as permitted by or in accordance with the prior written consent provisions of this Article 7. The Landlord acknowledges that the Tenant buys and sells securities of all kinds in every case and any attempt thereat shall be void any the ordinary course of no force its business.
(b) Notwithstanding anything contained to the contrary in Section 7.1(a), (A) the assignment or effect. For the purposes transfer of this Lease, and the term and estate hereby granted, to any entity (i) into which the Tenant is merged, (ii) with which the Tenant is consolidated or (iii) to which all or substantially all of the assets of the Tenant are transferred (such entity being hereinafter in this Article called the “Assignee”) without the prior consent of the Landlord shall not be deemed to be prohibited hereby and (B) no (i) transfer or transferee issuance of stock, partnership interests or other beneficial interests in the Tenant, or (ii) sale or sales (in either one or a series transfer of transactions) of fifty (50%) percent % or more of the capital stock assets of Tenant, if the Tenant (it being stipulated that this Lease may not be transferred in connection with such sale or transfer unless the same is a corporation sale or fifty (50%) percent transfer of all or more substantially all of the ownership interests of Tenant, if Tenant is a partnership or (ii) a merger or consolidation of Tenant into or with an other corporation or business entity shall’s assets, in each instance referred to in which case the preceding clauses foregoing clause (iA) and the subsequent clause (iiy) shall each apply), shall be deemed to be an assignment of this Lease requiring Lease, if in the prior written consent case of Landlord as herein set forth. If this Lease be assigned both clauses (A) and (B), and upon the express conditions that, (x) the primary purpose for such merger, consolidation, transfer, issuance or if the premises or any part thereof by sublet or occupied by anybody sale is other than Tenantthe transfer of this Lease, Landlord may(y) any such Assignee, after default by Tenantwithin 15 business days of such merger, collect rent from the assigneeconsolidation, subtenant transfer, issuance or occupantsale, executes and apply the net amount collected delivers to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver or any of Tenant's covenants contained Landlord an agreement in this Article 7 or elsewhere form and substance reasonably satisfactory to the Landlord whereby the Assignee assumes all the obligations set forth in this Lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant as sub-lessor or assignor from the further performance by Tenant of the covenants, agreements, terms, provisions and conditions of this Lease on the part of the tenant hereunder to be kept, performed or observed. Tenant's liability under this Lease, in the event of an assignment, shall not at any time be released, relieved or discharged by reason of Landlord's consent to such assignment nor shall Tenant at any time be released, relieved or discharged of any such obligations of the parties to this Lease or by any stipulation extending any time for performance hereunder or Landlord's waiver of performance of any obligation hereunder or Landlord's failure to enforce any obligation set forth in this Lease. If this Lease be assigned or if all or any portion of the premises be sublet, the assignee or subtenant, as the case may be, shall have no right, and shall not be entitled, to exercise any option contained in this Lease which may be exercised by Tenant.
(b) Notwithstanding anything to the contrary contained in this Article 7, and so long as Tenant is not in default of any of the covenants, agreements, terms, provisions and conditions of this Lease on its part to be kept, observed and or performed, and whereby the Assignee expressly agrees that the provisions of this Article shall, notwithstanding such merger, consolidation, transfer, issuance or sale, be binding upon it with respect to all future assignments and transfers and (z) the net worth of the entity holding the tenant’s interest under this Lease (computed in accordance with GAAP) immediately following such merger, consolidation, transfer, issuance or sale is not less than $100,000,000 and the Assignee or the Tenant, as applicable, within 15 business days of said merger, consolidation, transfer, issuance or sale, delivers to the Landlord evidence reasonably satisfactory to the Landlord of such net worth.
(c) Notwithstanding anything contained to the contrary in Section 7.1(a), the Landlord will consent to the Tenant may, in connection with (i) permitting the sale of all Premises to be used and occupied for the purposes specified in, and subject to the provisions of, this Lease, by, or sublet to, any Affiliate of the capital stock of Tenant, if Tenant is a corporation, or of all of the ownership interests of Tenant, if Tenant is a partnership, or and (ii) a merger assigning this Lease to any Affiliate of the Tenant, but, in each case, only for so long as the occupant, subtenant or consolidation assignee remains an Affiliate of Tenant into or with any other corporation or business entity or the Tenant, provided, in each case, that (iii1) the sale Tenant provides reasonable evidence of the relationship of the Affiliate to the Tenant (it being agreed that, with respect to the Named Tenant only, a certificate of a partner or an officer of the Named Tenant to such effect shall be deemed reasonable evidence, provided that, in the case of an assignment of this Lease or a subletting of all or substantially all of the assets of TenantPremises, assign this Leasethe Named Tenant shall, with Landlord's prior written consent which shall not be unreasonably withheld or delayed, provided that:
(c) Tenant shall furnish Landlord with the name and business address upon request of the proposed assigneeLandlord, a counterpart of the proposed assignment agreement, and satisfactory information with respect deliver to the nature and character Landlord reasonable evidence in support of the business of the proposed assignee together with current financial information of the proposed assigned certified by a certified public accountant and referencessuch certificate), including banking references, satisfactory to Landlord;
(d2) in the Landlord’s reasonable judgment of Landlord, the proposed assignee is financially responsible with respect to its proposed obligations under the proposed assignment agreement and Affiliate is of a character and reputation, and engaged in a business, business which is in keeping with the standards of in those respects for the Building;
Building and its occupancy (e) the premises it being agreed that any such determination shall be used only for the purpose set forth in Article 1 hereof;
(f) an executed duplicate original, in form satisfactory to Landlord for review made by Landlord's counsel, of such assignment agreement shall be delivered to Landlord at least thirty (30) days prior reference to the effective date thereof. Tenant will also deliver Landlord’s then standard office leasing practice (giving due regard to Landlordtenants under leases of space in the Center existing at the time in question)), at least thirty (303) days prior in the case of an assignment to the effective date thereofan Affiliate, said Affiliate shall have executed and delivered an assumption agreement in form satisfactory to Landlord wherein the assignee agrees to assume all of the covenants, agreements, terms, provisions and conditions of this Lease whereby said Affiliate shall agree to be kept, observed bound by and performed by Tenant hereunder and which provides that Tenant named herein and such assignee shall, after the effective date of such assignment, be jointly and severally liable for the performance of all of the convents, agreements, terms, provisions and conditions of this Lease;
(g) each assignment shall be subject and subordinate to all of the covenants, agreements, terms, provisions and conditions of this Lease and the "Prime Lease" as such term is hereinafter defined; and
(h) Assignee shall deposit with Landlord an amount equal to ( ) months of the fixed rent then in effect; and
(i) Tenant covenants and agrees that, notwithstanding any assignment and/or the acceptance of rent or additional rent by Landlord from any assignee, Tenant shall and will remain fully liable for the payment of the rent and additional rent due and to become due hereunder and for the performance of upon all the covenants, agreements, terms, provisions and conditions contained in this Lease and Guaranty on the part of Tenant to be kept, observed and performed, ("Obligation") provided, however, that if Tenant shall timely have complied with all of the conditions set forth in this Article 7 and Landlord has approved (in writing) the proposed assignee, Tenant shall be released from said Obligations, effective upon the effective date of the assignment of this Lease. The listing of any name other than that of Tenant, whether Lease on the doors of the premises, on the Building directory, or otherwise, shall not operate to vest any right or interest in this Lease or in the premises or to be deemed to be the written consent of Landlord mentioned in this Article 7, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.the
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Samples: Lease Agreement (Lazard LTD)
