ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Section 25.01 Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise (a) assign or otherwise transfer this Lease or the term and estate hereby granted or any interest herein or offer or advertise to do so, (b) sublet the Premises or any part thereof, or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in or otherwise hypothecate this Lease or the Premises or any interest therein or any part thereof in any manner whatsoever, without in each instance obtaining the prior written consent of Landlord. Landlord shall not unreasonably withhold, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker. (a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a transfer of a majority percentage interest of the stock or beneficial ownership interest, as the case may be, of Tenant (however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute an assignment of this Lease or be subject to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering. (b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commence, as the case may be, (b) Tenant provides Landlord with at least five (5) business days’ prior written notice thereof along with a fully executed copy of the assignment or sublease, (c) Tenant provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of the above-described control test, (d) intentionally deleted and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control test.
Appears in 2 contracts
Samples: Lease (Warner Music Group Corp.), Lease (Warner Music Group Corp.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.1 Subject to the provisions of Section 25.01 11.2 hereof Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise not (a) assign or otherwise transfer this Lease or any interest herein, or the term and estate hereby granted or any interest herein or offer or advertise to do sogranted, (b) sublet the Premises demised premises or any part thereof, or offer or advertise to do so, thereof or allow the same to be usedused or occupied by others, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in pledge or otherwise hypothecate encumber this Lease or the Premises or any interest therein demised premises or any part thereof in any manner whatsoeverby reason of any act or omission on the part of Tenant, without or (d) advertise, or authorize a broker to advertise, for a subtenant or an 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, without, in each instance instance, obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord shall not unreasonably withholdFor purposes of this Article 11, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a the transfer of a majority percentage interest of the issued and outstanding capital stock of any corporate tenant, or beneficial ownership interestof a corporate subtenant, as or the case may betransfer of a majority of the total interest in any partnership, of limited liability company or other entity that is the Tenant (or a subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute deemed an assignment of this Lease Lease, or be subject to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commencesublease, as the case may be, and (ii) a takeover agreement shall be deemed a transfer of this Lease.
11.2 The consent of Landlord shall not be required for (but the provisions of Section 11.5(d) hereof shall be applicable to) an assignment or sublease of all or any portion of the 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 or, (iii) if Tenant is a partnership, a successor partnership, provided that any such merger, consolidation, transfer or other transaction is not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee, successor or subtenant, as applicable, has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to the transaction in question. The provisions of clauses (a) and (b) of Section 11.1 shall not apply to transactions with an entity (hereinafter called an "Affiliate") which controls or is controlled by Tenant provides Landlord or is under common --------- control with at least five (5) business days’ prior written notice thereof along with a fully executed copy Tenant during the period it remains an Affiliate. Furthermore, an Affiliate of Tenant shall be permitted to occupy the demised premises but only during such period as it shall remain an Affiliate. For the purposes of the foregoing "control" shall mean ownership of 50% or more of the stock, ------- partnership interests or other equity interests in the entity.
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 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 from and after the date of such 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 any further assignment or transfer, continue to be binding upon it in the future. Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and 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 payment of the fixed annual rent and additional rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of Tenant to be performed or observed.
(a) Except for an assignment or sublease pursuant to Section 11.2 hereof, 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 sixty (60) 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, to terminate this Lease or to 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) in the case of a proposed subletting, to terminate this Lease, with respect to 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 or to accept a sublease from Tenant 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 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 and building services 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 subleased premises shall be limited to those which accrued and related to such as were made prior to the effective date of the sublease, and
(x) Such sublease shall 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 of the provisions of this Section 11.4, Tenant shall be excused from having to obtain Landlord's consent, as required by the terms of this Lease, for changes, alterations, decorations, additions or improvements desired by the subtenant.
(c) If pursuant to the exercise of any of Landlord's options pursuant to this 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 an assignment of this Lease or a proposed subletting of the demised premises, as the case may be, by Tenant, provided:
(a) Tenant provides shall have furnished Landlord with the name and business address of the proposed subtenant or assignee, information with respect to its intended use of the demised premises and the nature and character of the proposed subtenant's or assignee's business, or activities, and, if Tenant is no longer the actual tenant of the demised premises, such reasonable references and current financial information with respect to net worth, credit and financial responsibility as are reasonably satisfactory to Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction and an executed counterpart of the above-described control testsublease or assignment agreement;
(b) the proposed subtenant or assignee is a reputable party whose financial net worth, credit and financial responsibility is, considering the responsibilities involved, satisfactory to Landlord;
(c) 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 Building Project; and
(d) intentionally deleted each sublease shall specifically state that (i) it is subject to all of the terms, covenants, agreements, provisions, and conditions of this Lease, and (eii) said 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.
11.6 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. The receipt by Landlord of any amounts from an assignee or subtenant continues at all times thereafter to satisfy subtenant, or other occupant of any part of the above-described control testdemised 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.
Appears in 1 contract
Samples: Lease Agreement (Interliant Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Section 25.01 Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise (a) assign or otherwise transfer this Lease or the term and estate hereby granted or any interest herein or offer or advertise to do so, (b) sublet the Premises or any part thereof, or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in or otherwise hypothecate this Lease or the Premises or any interest therein or any part thereof in any manner whatsoever, without in each instance obtaining the prior written consent of Landlord. Landlord shall not unreasonably withhold, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) Section 25.02 If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: to (i) a transfer of a majority any percentage interest of the stock or beneficial ownership interest, as the case may be, of Tenant (at any level and however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability companyTenant) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability companyTenant) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability companypartnership) as of the date immediately prior to such eventTenant executed this Lease. Notwithstanding anything contained herein to the contraryabove, the provisions of subdivision (Aa) reorganization of Section 25.01 shall not apply to transactions with a corporation or other entity into or with which Tenant from one form of entity is merged or consolidated or to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of which all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute an assignment of this Lease or be subject to the restrictions in Section 25.01assets are transferred, provided that: (1) the principal purpose of that in any of such events the foregoing transactions is not successor to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity Tenant has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s the net worth of Tenant immediately prior to such transaction; merger, consolidation or transfer and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant Tenant is ultimately controlled by the same persons who controlled Tenant immediately prior to Section 25.04 hereof; such merger, consolidation or transfer and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten thirty (1030) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement merger, consolidation or otherwise) or practical to do soasset transfer; provided, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the abovehowever, Section 25.01 this exception shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market situation where Tenant is a shell corporation (i.e., either Tenant has no or any recognized securities exchange; minimal assets or (z) any sale all or issuance substantially all of Tenant’s stock assets are located at the Premises and it derives all or units substantially all of interest in connection with its income from operations at the Premises). In the event that Tenant is a public offering.
(b) shell corporation, any such merger, consolidation or asset transfer shall be subject to Section 25.01. Notwithstanding anything contained in this Article 25 to the contrary, Tenant CNBB-RDF HOLDINGS, LP (“CNBB”) may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls TenantCNBB, Tenant CNBB controls and/or is under common control with Tenant (each such entity, an “Affiliate”)CNBB, without having to obtain Landlord’s prior written consent, which assignment or sublease consent (and shall not be subject to Section 25.06 or 25.13 below, 25.06) provided that: that (a) Tenant CNBB is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commence, as the case may be, (b) Tenant CNBB provides Landlord with at least five ten (510) business days’ prior written notice thereof along with a fully executed copy of the assignment or sublease, (c) Tenant CNBB provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annumthereafter), within five (5) business days’ after Landlord requests the same in writingsame, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of whether the above-described control testtest is satisfied, (d) intentionally deleted CNBB and the assignee or subtenant, as the case may be, executes Landlord’s then standard form of consent to assignment or sublease, as the case may be, and Tenant reimburses Landlord for Landlord’s legal and administrative fees in connection therewith and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control test.
Section 25.03 If this Lease be assigned, whether or not in violation of the provisions of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the assignee. If the Premises or any part thereof are sublet or used or occupied by anybody other than Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the Fixed Rent and additional rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 25.01, or the acceptance of the assignee, subtenant or occupant as tenant, or as a release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease. The consent by Landlord to assignment, mortgaging, subletting or use or occupancy by others shall not in any way be considered to relieve Tenant from obtaining the express written consent of Landlord to any other or further assignment, mortgaging, subletting or use or occupancy by others not expressly permitted by this Article. References in this Lease to use or occupancy by others, that is anyone other than Tenant, shall not be construed as limited to subtenants and those claiming under or through subtenants but as including also licensees and others claiming under or through Tenant, immediately or remotely.
Section 25.04 Any assignment or transfer, whether made with or without Landlord’s consent pursuant to Section 25.01 or Section 25.02, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance satisfactory to Landlord whereby the assignee shall assume the obligations of this Lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions in Section 25.01 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. Tenant covenants that, notwithstanding any assignment or transfer (including by way of asset transfer), whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Fixed Rent and/or additional rent by Landlord from an assignee, transferee, or any other party, Tenant shall remain fully liable for the payment of the Fixed Rent and additional rents and for the other obligations of this Lease on the part of Tenant to be performed or observed.
Section 25.05 The joint and several liability of Tenant and any immediate or remote successor-in-interest of Tenant and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by 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.
Section 25.06 Notwithstanding anything contained to the contrary in Sections 25.01 or 25.02 of this Article, if Tenant shall at any time or times during the term of this Lease desire to assign this Lease (other than an assignment to be made pursuant to the second sentence in Section 25.02) or sublet all or part of the Premises, Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (a) a conformed or photostatic copy of the proposed assignment or sublease, the effective or commencement date of which shall be at least forty-five (45) days after the giving of such notice, (b) a statement setting forth in reasonable detail the identity of the proposed assignee or sub-tenant, the nature of its business and its proposed use of the Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including without limitation, its most recent financial report. Section 25.07 Intentionally deleted. Section 25.08 Intentionally deleted. Section 25.09 Intentionally deleted.
Appears in 1 contract
Samples: Lease (Paramount Group, Inc.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.1 Subject to the provisions of Section 25.01 11.2 hereof Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise not (a) assign or otherwise transfer this Lease or any interest herein, or the term and estate hereby granted or any interest herein or offer or advertise to do sogranted, (b) sublet the Premises demised premises or any part thereof, or offer or advertise to do so, thereof or allow the same to be usedused or occupied by others, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in pledge or otherwise hypothecate encumber this Lease or the Premises or any interest therein demised premises or any part thereof in any manner whatsoeverby reason of any act or omission on the part of Tenant, without or (d) advertise, or authorize a broker to advertise, for a subtenant or an 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, without, in each instance instance, obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord shall not unreasonably withholdFor purposes of this Article 11, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a the transfer of a majority percentage interest of the issued and outstanding capital stock of any corporate tenant, or beneficial ownership interestof a corporate subtenant, as or the case may betransfer of a majority of the total interest in any partnership, of limited liability company or other entity that is the Tenant (or a subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute deemed an assignment of this Lease Lease, or be subject to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commencesublease, as the case may be, and (ii) a takeover agreement shall be deemed a transfer of this Lease.
11.2 The consent of Landlord shall not be required for (but the provisions of Section 11.5(d) hereof shall be applicable to) an assignment or sublease of all or any portion of the 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 or, (iii) if Tenant is a partnership, a successor partnership, provided that any such merger, consolidation, transfer or other transaction is not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee, successor or subtenant, as applicable, has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to the transaction in question. The provisions of clauses (a) and (b) of Section 11.1 shall not apply to transactions with an entity (hereinafter called an "AFFILIATE") which controls or is controlled by Tenant provides Landlord or is under common control with at least five (5) business days’ prior written notice thereof along with a fully executed copy Tenant during the period it remains an Affiliate. Furthermore, an Affiliate of Tenant shall be permitted to occupy the assignment or sublease, (c) Tenant provides Landlord, from time to time (initially demised premises but only during such period as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of the above-described control test, (d) intentionally deleted and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control test.it shall
Appears in 1 contract
Samples: Lease Agreement (Interliant Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Section 25.01 Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise (a) assign or otherwise transfer this Lease or the term and estate hereby granted or any interest herein or offer or advertise to do so, (b) sublet the Premises or any part thereof, or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in or otherwise hypothecate this Lease or the Premises or any interest therein or any part thereof in any manner whatsoever, without in each instance obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed in accordance with Section 25.10 hereof. Landlord shall not unreasonably withhold, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Except as otherwise provided herein, if Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a transfer of a majority percentage interest of the stock or beneficial ownership interest, as the case may be, of Tenant (however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability companypartnership) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability companypartnership) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability companypartnership) as of the date immediately prior to such event. .
(b) Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to anotheranother or any change in Tenant dictated by regulatory or legislative act, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute an assignment of this Lease or be subject to the restrictions in Section 25.01, (and, for avoidance of doubt, shall not be subject to Sections 25.06 or 25.13 below), provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (“GAAP”) (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(bc) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commence, as the case may be, (b) Tenant provides Landlord with at least five (5) business days’ prior written notice thereof along with a fully executed copy of the assignment or sublease, (c) Tenant provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five ten (510) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of the above-described control test, (d) intentionally deleted Tenant and the assignee or subtenant, as the case may be, executes such reasonable documentation as Landlord requests in connection with such assignment or sublease, and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control test.
Section 25.03 If this Lease shall be assigned in violation of the provisions of this Lease, Landlord may, after default by Tenant, and notice and the expiration of Tenant’s time to cure such default, collect rent from the assignee. If the Premises or any part thereof are sublet or used or occupied by anybody other than Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant, and notice and the expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord shall apply the net amount collected to the Fixed Rent and additional rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 25.01, or the acceptance of the assignee, subtenant or occupant as tenant, or as a release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease. The consent by Landlord to assignment, mortgaging, subletting or use or occupancy by others shall not in any way be considered to relieve Tenant from obtaining the express written consent of Landlord to any other or further assignment, mortgaging, subletting or use or occupancy by others not expressly permitted by this Article. References in this Lease to use or occupancy by others, that is anyone other than Tenant, shall not be construed as limited to subtenants and those claiming under or through subtenants but as including also licensees and others claiming under or through Tenant, immediately or remotely.
Section 25.04 Any assignment or transfer of Tenant’s entire interest in this Lease, whether made with or without Landlord’s consent pursuant to Section 25.01 or Section 25.02, shall be made only if, and shall not be effective until, the assignee or transferee shall execute, acknowledge and deliver to Landlord an agreement whereby the assignee or transferee shall assume from and after the date of such assignment or transfer the obligations of this Lease on the part of Tenant to be performed or observed from and after the effective date of such assignment or transfer and whereby the assignee or transferee shall agree that the provisions in Section 25.01 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers (an “Assumption Agreement”). Tenant covenants that, notwithstanding any assignment or transfer (including by way of asset transfer), whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Fixed Rent and/or additional rent by Landlord from an assignee, transferee, or any other party, Tenant shall remain fully liable for the payment of the Fixed Rent and additional rents and for the other obligations of this Lease on the part of Tenant to be performed or observed as set forth in this Lease.
Section 25.05 The joint and several liability of Tenant and any immediate or remote successor-in-interest of Tenant and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by 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, provided that none of the foregoing shall increase the obligations or liabilities of any predecessor-in-interest as Tenant hereunder. Section 25.06 Notwithstanding anything contained to the contrary in Sections 25.01 or 25.02 of this Article, if Tenant shall at any time or times during the Term desire (notwithstanding that Tenant may not in fact have entered into any discussions with any assignee or subtenant) to assign this Lease, sublease the entire Premises for any period of time, or sublease any full floor within the Premises for all or substantially all of the Term (other than an assignment or sublease permitted to be made without Landlord’s consent hereunder), Tenant shall give notice thereof to Landlord, which notice shall include all of the material terms (including, without limitation, the proposed effective date of the assignment or the proposed commencement date of the subletting) of the proposed assignment or subletting. Such notice (the “Recapture Offer Notice”) shall be deemed an offer from Tenant (the “Recapture Offer”) to Landlord whereby Landlord may, at its option: (i) terminate this Lease (if the proposed transaction is an assignment or a sublease of all the Premises); or (ii) terminate this Lease with respect to the space covered by the proposed sublease if the proposed transaction is a sublease of any full floor within the Premises for all or substantially all of the Term (meaning for a sublease whose term expires within the last year of the Term). Said option may be exercised by Landlord by notice to Tenant at any time within fifteen (15) business days after receipt by Landlord of the Recapture Offer Notice (such 15 business day period, the “Recapture Determination Period”); and Tenant shall not assign this Lease or sublet such space to any person during the Recapture Determination Period. If Landlord shall not so terminate this Lease in accordance with the foregoing provisions of this Section 25.06 within the Recapture Determination Period, the Recapture Offer shall be deemed rejected by Landlord and therefore null and void and of no further force or effect upon the expiration of the Recapture Determination Period.
Appears in 1 contract
Samples: Lease (MongoDB, Inc.)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.1 Subject to the provisions of Section 25.01 11.2 hereof Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise not (a) assign or otherwise transfer this Lease or any interest herein, or the term and estate hereby granted or any interest herein or offer or advertise to do sogranted, (b) sublet the Premises demised premises or any part thereof, or offer or advertise to do so, thereof or allow the same to be usedused or occupied by others, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in pledge or otherwise hypothecate encumber this Lease or the Premises or any interest therein demised premises or any part thereof in any manner whatsoeverby reason of any act or omission on the part of Tenant, without or (d) advertise, or authorize a broker to advertise, for a subtenant or an 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, without, in each instance instance, obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord shall not unreasonably withholdFor purposes of this Article 11, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a the transfer of a majority percentage interest of the issued and outstanding capital stock of any corporate tenant, or beneficial ownership interestof a corporate subtenant, as or the case may betransfer of a majority of the total interest in any partnership, of limited liability company or other entity that is the Tenant (or a subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute deemed an assignment of this Lease Lease, or be subject to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commencesublease, as the case may be, and (ii) a takeover agreement shall be deemed a transfer of this Lease.
11.2 The consent of Landlord shall not be required for (but the provisions of Section 11.5(d) hereof shall be applicable to) an assignment or sublease of all or any portion of the 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 or, (iii) if Tenant is a partnership, a successor partnership, provided that any such merger, consolidation, transfer or other transaction is not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee, successor or subtenant, as applicable, has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to the transaction in question. The provisions of clauses (a) and (b) of Section 11.1 shall not apply to transactions with an entity (hereinafter called an "AFFILIATE") which controls or is controlled by Tenant provides Landlord or is under common control with at least five (5) business days’ prior written notice thereof along with a fully executed copy Tenant during the period it remains an Affiliate. Furthermore, an Affiliate of Tenant shall be permitted to occupy the demised premises but only during such period as it shall 30 remain an Affiliate. For the purposes of the assignment foregoing "control" shall mean ownership of 50% or sublease, (c) Tenant provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of the above-described control teststock, (d) intentionally deleted and (e) said assignee partnership interests or subtenant continues at all times thereafter to satisfy other equity interests in the above-described control testentity.
Appears in 1 contract
Samples: Lease Agreement (Interliant Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Section 25.01 11.01. Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise not (a) assign or otherwise transfer this Lease or the term and estate hereby granted or any interest herein or offer or advertise to do sogranted, (b) sublet the Premises demised premises or any part thereof, or offer or advertise to do so, thereof or allow the same to be usedused or occupied by others or in violation of Article 5, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in pledge or otherwise hypothecate encumber this Lease or the Premises or any interest therein demised premises or any part thereof in any manner whatsoeverby reason of any act or omission on the part of Tenant, without without, in each instance instance, obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord shall not unreasonably withholdFor purposes of this Article 11, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a the transfer of a majority percentage interest of the issued and outstanding capital stock of any corporate tenant, or beneficial ownership interestof a corporate subtenant, as or the case may betransfer of a majority of the total interest in any partnership tenant or subtenant, of Tenant (however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation , shall be deemed an assignment of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in , or of such sublease, as the amount case may be, except that the transfer of issued and/or the outstanding shares of capital stock of any corporate Tenant (tenant, or partnership interests subtenant, shall be deemed not to include the sale of such stock by persons or parties, through the "over-the-counter market" or through any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital recognized stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplishedexchange, whether in a single transaction or in a series of related or unrelated transactions), connection with an initial public offering conducted in accordance with the result that provisions of the Tenant Securities and Exchange Act of 1933 other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934 as amended, (ii) any person or legal representative of Tenant, to whom Tenant's interest under this Lease passes by operation of law, or otherwise, shall no longer be controlled bound by the beneficial provisions of this Article 11, and record owners of the capital stock of such corporate Tenant (iii) a modification, amendment or partnership interests in the case extension of a partnership or membership interests in the case sublease shall be deemed a sublease.
11.02. The provisions of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) 11.01 above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute apply to an assignment of this Lease to any corporation into or with which Tenant is merged or consolidated or to any corporation which shall be subject an affiliate, subsidiary, parent or successor of Tenant, provided and on condition that (i) such transaction is for a bona fide business purpose and not, either directly or indirectly, principally for the purpose of transferring the leasehold created hereby, and (ii) the successor to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity Tenant or transferee has a net worth computed in accordance with generally accepted accounting principles immediately following such transfer of not less than the greater of (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on x) the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth of Tenant as of the Commencement Date, or (y) the net worth of Tenant immediately prior to preceding such transaction; transfer, and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with proof thereof, reasonably satisfactory evidence of the same to Landlord, shall have been delivered to Landlord at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making effective date of such assignment or sublease or the time such assignment or sublease is to take effect or commence, as the case may be, (b) Tenant provides Landlord with at least five (5) business days’ prior written notice thereof along with a fully executed copy of the assignment or sublease, (c) Tenant provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of the above-described control test, (d) intentionally deleted and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control testtransfer.
Appears in 1 contract
Samples: Lease Agreement (24/7 Media Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Section 25.01 Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise (a) assign or otherwise transfer this Lease or the term and estate hereby granted or any interest herein or offer or advertise to do so, (b) sublet the Premises or any part thereof, or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in or otherwise hypothecate this Lease or the Premises or any interest therein or any part thereof in any manner whatsoever, without in each instance obtaining the prior written consent of Landlord. Landlord shall not unreasonably withhold, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) Section 25.02 If Tenant is a corporation, partnership or other entityentity whose securities are not traded on a nationally recognized stock exchange (such as the New York Stock Exchange, the American Stock Exchange, NASDAQ or the like), the provisions of subdivision (a) of Section 25.01 shall apply to: to (i) a transfer of a majority any percentage interest of the stock or beneficial ownership interest, as the case may be, of Tenant (at any level and however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability companyTenant) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability companyTenant) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability companypartnership) as of the date immediately prior to such eventTenant executed this Lease. Notwithstanding anything contained herein to the contraryabove, the provisions of subdivision (Aa) reorganization of Section 25.01 shall not apply to transactions with a corporation or other entity into or with which Tenant from one form of entity is merged or consolidated or to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of which all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute an assignment of this Lease or be subject to the restrictions in Section 25.01assets are transferred, provided that: (1) the principal purpose of that in any of such events the foregoing transactions is not successor to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity Tenant has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s the net worth of Tenant immediately prior to such transaction; merger, consolidation or transfer and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten twenty (1020) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement merger, consolidation or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so)asset transfer. Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant CROWN MEDIA UNITED STATES, LLC (“Crown”) may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls TenantCrown, Tenant Crown controls and/or is under common control with Tenant (each such entity, an “Affiliate”)Crown, without having to obtain Landlord’s prior written consent, which assignment or sublease consent (and shall not be subject to Section 25.06 or 25.13 below, 25.06) provided that: that (a) Tenant Crown is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commence, as the case may be, (b) Tenant Crown provides Landlord with at least five ten (510) business days’ prior written notice thereof along with a fully executed copy of the assignment or sublease, (c) Tenant Crown provides Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annumthereafter), within five (5) business days’ after Landlord requests the same in writingsame, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction of whether the above-described control testtest is satisfied, (d) intentionally deleted Crown and the assignee or subtenant, as the case may be, executes Landlord’s then standard form of consent to assignment or sublease, as the case may be, and Tenant reimburses Landlord for Landlord’s legal and administrative fees in connection therewith and (e) said assignee or subtenant continues at all times thereafter to satisfy the above-described control test.
Section 25.03 If this Lease be assigned, whether or not in violation of the provisions of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the assignee. If the Premises or any part thereof are sublet or used or occupied by anybody other than Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the Fixed Rent and additional rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 25.01, or the acceptance of the assignee, subtenant or occupant as tenant, or as a release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease. The consent by Landlord to assignment, mortgaging, subletting or use or occupancy by others shall not in any way be considered to relieve Tenant from obtaining the express written consent of Landlord to any other or further assignment, mortgaging, subletting or use or occupancy by others not expressly permitted by this Article. References in this Lease to use or occupancy by others, that is anyone other than Tenant, shall not be construed as limited to subtenants and those claiming under or through subtenants but as including also licensees and others claiming under or through Tenant, immediately or remotely.
Section 25.04 Any assignment or transfer, whether made with or without Landlord’s consent pursuant to Section 25.01 or Section 25.02, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance reasonably satisfactory to Landlord whereby the assignee shall assume the obligations of this Lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions in Section 25.01 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. Tenant covenants that, notwithstanding any assignment or transfer (including by way of asset transfer), whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Fixed Rent and/or additional rent by Landlord from an assignee, transferee, or any other party, Tenant shall remain fully liable for the payment of the Fixed Rent and additional rents and for the other obligations of this Lease on the part of Tenant to be performed or observed.
Section 25.05 The joint and several liability of Tenant and any immediate or remote successor-in-interest of Tenant and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by 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.
Section 25.06 Notwithstanding anything contained to the contrary in Sections 25.01 or 25.02 of this Article, if Tenant shall at any time or times during the term of this Lease desire to assign this Lease (other than an assignment to be made pursuant to the second sentence in Section 25.02) or sublet all or part of the Premises, Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (a) a conformed or photostatic copy of the proposed assignment or sublease, the effective or commencement date of which shall be at least thirty (30) days after the giving of such notice, (b) a statement setting forth in reasonable detail the identity of the proposed assignee or sub-tenant, the nature of its business and its proposed use of the Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option, (i) terminate this Lease (if the proposed transaction is an assignment or a sublease of all the Premises), or (ii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises). Said option may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after such notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease or sublet such space to any person.
Section 25.07 If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all the Premises, then, the Expiration Date shall be the date that such assignment or sublet was to be effective or commence, as the case may be.
Section 25.08 If Landlord exercises its option to terminate this Lease in part, in any case where Tenant desires to sublet part of the Premises, then, (a) the Expiration Date with respect to such part of the Premises shall be the date that the proposed sublease was to commence; (b) from and after such Expiration Date the Fixed Rent and additional rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises; and (c) Tenant shall pay to Landlord, upon demand, Landlord’s charge for physically separating such part of the Premises from the balance of the Premises.
Appears in 1 contract
Samples: Lease (Crown Media Holdings Inc)
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. 11.1 Subject to the provisions of Section 25.01 11.2 hereof Tenant shall not, whether directly, indirectly, voluntarily, involuntarily, or by operation of law or otherwise not (a) assign or otherwise transfer this Lease or any interest herein, or the term and estate hereby granted or any interest herein or offer or advertise to do sogranted, (b) sublet the Premises demised premises or any part thereof, or offer or advertise to do so, thereof or allow the same to be usedused or occupied by others, occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber, grant a security interest in pledge or otherwise hypothecate encumber this Lease or the Premises or any interest therein demised premises or any part thereof in any manner whatsoeverby reason of any act or omission on the part of Tenant, without or (d) advertise, or authorize a broker to advertise, for a subtenant or an 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, without, in each instance instance, obtaining the prior written consent of Landlord, except as otherwise expressly provided in this Article 11. Landlord shall not unreasonably withholdFor purposes of this Article 11, condition or delay its consent to any advertisement to sublet all or any portion of the Premises or assign this Lease if such advertisement does not contain the financial terms of such assignment, but in all events, Tenant shall have the right to list the assignment or subletting with a broker.
(a) If Tenant is a corporation, partnership or other entity, the provisions of subdivision (a) of Section 25.01 shall apply to: (i) a the transfer of a majority percentage interest of the issued and outstanding capital stock of any corporate tenant, or beneficial ownership interestof a corporate subtenant, as or the case may betransfer of a majority of the total interest in any partnership, of limited liability company or other entity that is the Tenant (or a subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions); (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease; and/or (iii) any increase in the amount of issued and/or outstanding shares of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interests of any limited liability company) and/or the creation of one or more additional classes of capital stock of any corporate Tenant (or partnership interests of any partnership Tenant or membership interest of any limited liability company) (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock of such corporate Tenant (or partnership interests in the case of a partnership or membership interests in the case of a limited liability company) as of the date immediately prior to such event. Notwithstanding anything contained herein to the contrary, the (A) reorganization of Tenant from one form of entity to another, (B) change in situs or place of organization, (C) merger or consolidation of Tenant with and/or into another entity, (D) the sale, transfer and/or assignment of all or substantially all of Tenant’s assets, stock or other equity interests to another entity or (E) the transactions described in Section 25.02(a)(i)-(iii) above (the entity resulting from the transactions described in clauses (A)-(E) above, a, “Successor Entity”) shall not constitute deemed an assignment of this Lease Lease, or be subject to the restrictions in Section 25.01, provided that: (1) the principal purpose of any of the foregoing transactions is not to circumvent the restrictions on assignment set forth in this Article 25; and (2) the Successor Entity has a net worth computed in accordance with generally accepted accounting principles (or if Tenant and/or Successor Entity do not ordinarily prepare their respective financial statements in accordance with generally accepted accounting principles, then on the basis of another recognized basis of accounting consistently applied and regularly used by such party which shall include, without limitation, the income tax basis) equal to or greater than Tenant’s net worth immediately prior to such transaction; and (3) Successor Entity has executed an Assumption Agreement (as hereinafter defined in Section 25.04 below); pursuant to Section 25.04 hereof; and (4) Tenant provides Landlord with reasonably satisfactory evidence of the same at least ten (10) days prior to such transaction (and if prior disclosure is not legally permissible (whether by confidentiality agreement or otherwise) or practical to do so, then promptly following the time when disclosure is legally permissible or practical to do so). Notwithstanding the above, Section 25.01 shall not apply to: (y) transfers of stock in a corporation or other type of entity whose shares or units are traded in the “over-the-counter” market or any recognized securities exchange; or (z) any sale or issuance of Tenant’s stock or units of interest in connection with a public offering.
(b) Notwithstanding anything contained in this Article 25 to the contrary, Tenant may assign this Lease and/or sublease the Premises or any portion thereof to any entity which controls Tenant, Tenant controls and/or is under common control with Tenant (each such entity, an “Affiliate”), without having to obtain Landlord’s prior written consent, which assignment or sublease shall not be subject to Section 25.06 or 25.13 below, provided that: (a) Tenant is not in monetary or material non-monetary default of any of the terms or conditions of this Lease beyond the expiration of any applicable notice and cure period at the time of the making of such assignment or sublease or the time such assignment or sublease is to take effect or commencesublease, as the case may be, and (ii) a takeover agreement shall be deemed a transfer of this Lease.
11.2 The consent of Landlord shall not be required for (but the provisions of Section 11.5(d) hereof shall be applicable to) an assignment or sublease of all or any portion of the 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 or, (iii) if Tenant is a partnership, a successor partnership, provided that any such merger, consolidation, transfer or other transaction is not principally for the purpose of transferring the leasehold estate created hereby, and provided further, that the assignee, successor or subtenant, as applicable, has a net worth at least equal to or in excess of the net worth of Tenant immediately prior to the transaction in question. The provisions of clauses (a) and (b) of Section 11.1 shall not apply to transactions with an entity (hereinafter called an "AFFILIATE") which controls or is controlled by Tenant provides Landlord or is under common control with at least five (5) business days’ prior written notice thereof along with a fully executed copy Tenant during the period it remains an Affiliate. Furthermore, an Affiliate of Tenant shall be permitted to occupy the demised premises but only during such period as it shall remain an Affiliate. For the purposes of the foregoing "control" shall mean ownership of 50% or more of the stock, partnership interests or other equity interests in the entity.
11.3 Any assignment or transfer, whether made with Landlord's consent as required by Section 11.1 or without 32 Landlord's consent pursuant to Section 11.2, shall not be 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 from and after the date of such 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 any further assignment or transfer, continue to be binding upon it in the future. Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and 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 payment of the fixed annual rent and additional rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions and conditions of this Lease on the part of Tenant to be performed or observed.
(a) Except for an assignment or sublease pursuant to Section 11.2 hereof, 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 sixty (60) 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, to terminate this Lease or to 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) in the case of a proposed subletting, to terminate this Lease, with respect to 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 or to accept a sublease from Tenant 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 33 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 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 and building services 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 34 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 subleased premises shall be limited to those which accrued and related to such as were made prior to the effective date of the sublease, and
(x) Such sublease shall 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 of the provisions of this Section 11.4, Tenant shall be excused from having to obtain Landlord's consent, as required by the terms of this Lease, for changes, alterations, decorations, additions or improvements desired by the subtenant.
(c) If pursuant to the exercise of any of Landlord's options pursuant to this 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 an assignment of this Lease or a proposed subletting of the demised premises, as the case may be, by Tenant, provided:
(a) Tenant provides shall have furnished Landlord with the name and business address of the proposed subtenant or assignee, information with respect to its intended use of the demised premises and the nature and character of the proposed subtenant's or assignee's business, or activities, and, if Tenant is no longer the actual tenant of the demised premises, such reasonable references and current financial information with respect to net worth, credit and financial responsibility as are reasonably satisfactory to Landlord, from time to time (initially as well as any time thereafter but in no event more than once per annum), within five (5) business days’ after Landlord requests the same in writing, such evidence and/or affidavits as Landlord may reasonably require in order to confirm the satisfaction and an executed counterpart of the above-described control testsublease or assignment agreement;
(b) the proposed subtenant or assignee is a reputable party whose financial net worth, credit and financial 35 responsibility is, considering the responsibilities involved, satisfactory to Landlord;
(c) 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 Building Project; and
(d) intentionally deleted each sublease shall specifically state that (i) it is subject to all of the terms, covenants, agreements, provisions, and conditions of this Lease, and (eii) said 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.
11.6 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. The receipt by Landlord of any amounts from an assignee or subtenant continues at all times thereafter to satisfy subtenant, or other occupant of any part of the above-described control testdemised 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.
Appears in 1 contract
Samples: Lease Agreement (Interliant Inc)
