Assignment or Sublease by Tenant. 8.1.1 Except as hereinafter expressly provided, if Tenant desires to assign this Lease or sublet the Leased Premises or any part thereof (subletting, for the purposes hereof, includes the granting of concessions or licenses for the occupancy thereof), Tenant may do so, subject to the following: (i) At the time of any such assignment or subletting, this Lease is in full force and effect and there is no Event of Default by Tenant then in existence; (ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A); (iii) Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations of the proposed assignee or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity; (iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease; (v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder. 8.1.2 Landlord and Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess. 8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) of all or substantially all assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control.
Appears in 2 contracts
Samples: Office Lease Agreement (Exterran Holdings Inc.), Office Lease Agreement (Exterran Energy Solutions, L.P.)
Assignment or Sublease by Tenant. 8.1.1 Except as hereinafter expressly providedpermitted herein, if Tenant desires TENANT shall not, without the prior written approval of LESSOR, assign or in any manner transfer this lease, permit any assignment of this Lease by operation of law or otherwise, or sublet the Leased Premises or any part thereof. For purposes of this Lease, the sale or transfer of fifty percent (50%) or more of the stock, assets, or business of Lessee shall constitute an assignment requiring prior written consent of LESSOR. In the event TENANT should desire to assign this Lease or sublet the Leased Premises or any part thereof (sublettingthereof, for the purposes hereof, includes the granting TENANT shall give LESSOR written notice of concessions or licenses for the occupancy thereof), Tenant may do so, subject to the following:
(i) At the time of any such assignment or subletting, this Lease is in full force and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten sixty (1060) business days in advance of the date on which TENANT desires to make such assignment or sublease. LESSOR shall then notify TENANT in writing of its approval or disapproval of said assignment or sublease. No assignment or subletting (which notification by TENANT shall consist of the identity relieve TENANT of any such assignee obligation under this Lease. TENANT will not mortgage, pledge, or sublessee and the location and area of hypothecate its leasehold interest or grant any concession or license within the Leased Premises affected by without the prior written consent of LESSOR and any such assignment or subletting) and provide Landlord with a copy attempt to do any of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenantforegoing without the LESSOR’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed void. Consent to have elected option (A);
(iii) Landlord or approval by LESSOR of any assignment, sublease, mortgage, pledge or hypothecation of TENANTs leasehold interest or of any concession or license shall not destroy or result in a waiver of LESSOR’s rights under this paragraph, and all other subleases, assignments, mortgages, pledges, hypothecations, concessions or licenses shall likewise be made only be permitted to withhold its upon prior written consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business approval of LESSOR. The expiration or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms earlier termination of this Lease, including without limitationmay, Section 1.3at LESSOR’s option, (b) the operations of the proposed assignee or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess.
8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease terminate all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenantexisting subleases, any successor entities subtenancies, concessions or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) of all or substantially all assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities oflicenses, or the possession may operate as an assignment to LESSOR of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest inany or all such subleases, any person subtenancies, concessions or entity shall be presumed to constitute such controllicenses.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Assignment or Sublease by Tenant. 8.1.1 Except (a) Tenant shall not assign this Lease, sublet all or any part of the Premises or allow the Premises to be used or occupied by others (any such event being referred to herein as hereinafter expressly provideda (“Transfer”), if Tenant desires to assign or mortgage or otherwise encumber its leasehold estate under this Lease or sublet its property within the Leased Premises, without Landlord’s prior written consent, which shall not be unreasonably withheld or delayed subject to Section 9.1 (c) below.
(b) Tenant shall give Landlord at least sixty (60) days’ advance written notice of any proposed Transfer, stating the anticipated terms thereof and all relevant information on the proposed transferee requested by Landlord. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to notify Tenant in writing that Landlord elects to either (i) to terminate this Lease as to the space so affected, in which event Tenant shall be relieved of all obligations hereunder as to such space arising from and after such date, however, Tenant shall reserve the right to withdraw its request to Transfer in the event Landlord chooses to Terminate the lease (ii) consent to the proposed Transfer, or (iii) refuse consent on reasonable grounds as set forth Section 9.1 (c) below. In addition, in the event Tenant has delivered a notice to abandon the entire Premises under Section 8.2(e) hereof, and such abandonment continues for a period of six (6) months, Landlord shall have the right to terminate this Lease at any time following the expiration of such six (6) month period so long as the abandonment continues.
(c) Landlord shall not unreasonably withhold its consent to a proposed Transfer provided all of the following conditions have been met: (i) Tenant is not in default under the Lease, (ii) the nature and character of the proposed transferee, its creditworthiness, business and activities or its intended use of the Premises are consistent with the standards of the Building in Landlord’s sole judgment, (iii) the proposed transferee is not then an occupant of any part thereof of the Building unless Landlord does not have adequate space in the Building or a party with whom Landlord is then negotiating to lease space within the Building as evidenced by a written proposal made by Landlord to the proposed transferee (subletting, or from the proposed transferee to Landlord) within the six (6) month period prior to Tenant’s request for consent for the purposes hereofproposed Transfer; (iv) the proposed occupancy would not impose an extra burden upon the Building systems or Landlord’s ability to provide services to the other tenants of the Buildings, includes (iv) the granting of concessions such consent would not constitute a default under any other agreement to which Landlord is a party or licenses by which Landlord is bound, including, without limitation, any exclusives previously granted to other tenants of the Project and any restrictions on leasing contained in any other leases of space in the Building, (v) the proposed transferee is not a governmental agency or an entity with diplomatic immunity, or (vi) the requested assignment or sublease does not modify the Lease or the rights, obligations, or liabilities of either Landlord or Tenant under this Lease. Tenant acknowledges that the foregoing conditions are a reasonable basis for Landlord to withhold its consent to a Transfer and that if all of the foregoing conditions are not satisfied, Landlord may withhold its consent to a proposed Transfer in Landlord’s sole and absolute discretion.
(d) If Landlord consents to a Transfer, Tenant agrees that Fifty Percent (50%) of all Rent amounts and other consideration payable to Tenant in respect of the Transfer in excess of the Rent for the occupancy thereof), Tenant may do so, Premises or the portion thereof subject to the following:Transfer shall be paid to Landlord as Additional Rent hereunder immediately upon Tenant’s receipt thereof after deduction for all reasonable brokerage commissions, free rent and tenant improvement allowances actually paid by Tenant in conjunction with such Transfer, or at Landlord’s option such payments can be made directly to Landlord by such sublessee or assignee. Tenant acknowledges and agrees that, notwithstanding Landlord’s consent to any Transfer, Tenant shall remain directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent). The consent by Landlord to any Transfer shall not be deemed in any manner to be a consent to a use not permitted under Section I .5(a). Any consent by Landlord to a particular Transfer shall not constitute Landlord’s consent to any other or subsequent Transfer. In furtherance of the foregoing, but not in limitation thereof, the acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article IX shall not be deemed to be a consent or approval by Landlord to any such Transfer, nor shall the same be deemed a waiver of any right or remedy of Landlord hereunder as a result thereof.
(ie) At If Tenant is a partnership or limited liability company, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners or members owning as of the time date hereof a controlling or majority interest in Tenant shall be deemed a voluntary assignment of this Lease subject to the provisions of this Section 9.1. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer (whether by way of one or more sales or transfers) of the controlling or majority interest as of the date hereof in Tenant’s capital stock shall be deemed a voluntary assignment of this Lease and subject to the provisions of this Section 9.1.
(f) Tenant agrees to pay Landlord’s reasonable attorneys’ fees and costs in connection with Landlord’s review and approval of any such proposed subletting or assignment or sublettingand an administrative fee of one thousand dollars ($1,000).
(g) Notwithstanding Section 9.1(a) above, this Lease is in full force and effect and there is provided no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 belowhas occurred under this Lease, Tenant shall notify may effect a Transfer to any Affiliated Entity without Landlord’s prior consent provided (i) Tenant describes in writing to Landlord of its desire to assign the transaction in which the Transfer will be effective, or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide provides Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assignform Transfer documents, Landlord shall give Tenant written notice of Landlord’s election (A) to consent prior to the proposed transaction, or Transfer; (Bii) not Tenant identifies the Affiliated Entity to consent which Tenant intends to effect a Transfer prior to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
Transfer; and (iii) Tenant delivers to Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations copy of the proposed assignee executed Transfer documents on a Landlord-approved form to Landlord within thirty (30) days after such Transfer. A Transfer to an Affiliated Entity shall not release Tenant from any of its liabilities or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of obligations under this Lease, and the Transfer documents shall provide that Tenant shall remain primarily liable under this Lease jointly and severally with the Affiliated Entity. In no event shall any assignee must assume such Transfer have any material adverse financial impact on Tenant’s financial status. Tenant shall, prior to any such Transfer, provide written evidence reasonably satisfactory to Landlord that there shall be no material adverse financial impact on Tenant resulting from such Transfer. For purposes hereof, “Affiliated Entity” shall mean an entity which (i) controls, is controlled by, or is in such assignment common control with Tenant; or (ii) results from the merger or consolidation with Tenant, or (iii) acquires all the rights and obligations or substantially all of the assignor hereunder; and including without limitationassets of, any renewal rightsinterest in, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent (50%) or stock of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess.
8.1.3 . Notwithstanding anything stated herein to the contrary, in no event may Tenant shall at all times during the Term have the right, without having effect a Transfer to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization an Affiliated Entity whose primary assets are leaseholds or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) non-income producing assets, and any transfer of all or substantially all assets a substantial portion of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant ’s assets separate from the Transfer is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such controlexpressly prohibited.
Appears in 2 contracts
Samples: Lease Agreement (Q2 Holdings, Inc.), Lease Agreement (Q2 Holdings, Inc.)
Assignment or Sublease by Tenant. 8.1.1 Except as hereinafter expressly providedTenant may not, if Tenant desires to voluntarily or by operation of law, assign or transfer this Lease Lease, or sublet sublease the Leased Premises whole or any part thereof (sublettingof the leased premises, for or allow the purposes hereofwhole or any part of the leased premises to be used or occupied by any other person or entity, includes without the granting prior written consent of concessions or licenses for the occupancy thereof)Lessor. If Tenant is a corporation, Tenant may do so, subject to the following:
(i) At the time then any transfer of any such assignment or subletting, this Lease is by merger, consolidation or liquidation, or any change in full force and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance ownership of the assignment or subletting (which notification shall consist shares of voting stock so as to result in a change of the identity present effective voting control of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
(iii) Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate person, persons and/or entity owning a majority of said shares on the terms date of this Lease, including without limitationshall constitute an assignment of this Lease, Section 1.3and, (b) as such, shall require the operations prior written consent of Lessor. The prior written consent of Lessor shall not be withheld unreasonably, but only if all of the proposed assignee or subtenant would create a density level in excess of four following conditions are met: (4a) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
financially responsible; (ivb) Any assignment Tenant and any guarantors hereunder remain liable for the performance of this Lease by Tenant shall only be all of Tenant's obligations pursuant to the Lease; (c) the minimum guaranteed annual rent, effective as of the entirety effective date of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or subleasesubleasing, shall become forthwith the greater of the following: the minimum guaranteed annual rent then applicable, or an amount equal to the average of the rent, including reasonable brokerage costspercentage rent, reasonable tenant finish costspayable for the last two (2) lease years (or shorter period, which costs and expenses shall be amortized over if so required) immediately prior to the term lease year of the assignment proposed assigning or sublease to determine such excess.
8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) of all or substantially all assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereofsubleasing; and (ivd) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates leased premises remains the use or other provisions same as set forth on the Data Sheet, and does not conflict with an exclusive that Lessor might have granted since the date of this Lease. As used in this LeaseThe foregoing to the contrary notwithstanding, the term “Affiliate” Lessor shall mean any person or entity controlling, controlled have a period of sixty (60) days after notice by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management proposed assigning or subleasing to elect to terminate and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right cancel this Lease without further liability to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such controlTenant.
Appears in 1 contract
Assignment or Sublease by Tenant. 8.1.1 Except (a) Tenant shall not assign this Lease, sublet all or any part of the Premises or allow the Premises to be used or occupied by others (any such event being referred to herein as hereinafter expressly provideda “Transfer”), if Tenant desires to assign or mortgage or otherwise encumber its leasehold estate under this Lease or sublet its property within the Leased Premises Premises, without Landlord’s prior written consent, such approval not to be unreasonably withheld, conditioned or delayed.
(b) Tenant shall give Landlord at least thirty (30) days advance written notice of any part thereof proposed Transfer, stating the anticipated terms thereof. Landlord shall then have a period of fifteen (subletting, for the purposes hereof, includes the granting 15) days following receipt of concessions or licenses for the occupancy thereof), such notice within which to notify Tenant may do so, subject in writing that Landlord elects to the following:
either (i) At the time of any such assignment or subletting, to terminate this Lease is as to the space so affected, in full force which event Tenant shall be relieved of all obligations hereunder as to such space arising from and effect and there is no Event of Default by Tenant then in existence;
after such date, (ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transactionTransfer, subject to Landlord’s subsequent written approval of the proposed transferee or (Biii) not to withhold its consent to the proposed transaction, Transfer in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);accordance with Section 9.01(c) below.
(iiic) Landlord shall agrees that it will only be permitted to withhold its consent to a proposed assignment or subletting Transfer if one of the following is true, which Tenant acknowledges would be a reasonable basis for Landlord reasonably determines to withhold it consent (and notifies Tenant within the above time period) that (ai) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations nature and character of the proposed assignee transferee, its creditworthiness, business and activities or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion its intended use of the BuildingPremises are not consistent with the standards of the Building in Landlord’s sole judgment, or (cii) the proposed assignee transferee (or sublessee any of its affiliates) is then an occupant of any part of the Building or a governmental entity;
party with whom Landlord is then negotiating to lease space within the Building (unless Landlord is unable to provide such proposed transferee with space reasonably acceptable to such party), (iii) the proposed occupancy would impose an extra burden upon the Building systems or Landlord’s ability to provide services to the other tenants of the Buildings, (iv) Any assignment the granting of this Lease such consent would constitute a default under any other agreement to which Landlord is a party or by Tenant shall only be of the entirety of this Lease;
which Landlord is bound or (v) Any a default or an Event of Default by Tenant under this Lease is then pending; provided, however, if an uncured default is then pending Landlord may require that Tenant cure such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in default as a condition to Landlord’s consent to such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunderTransfer.
8.1.2 (d) If Landlord and consents to a Transfer, Tenant shall share agrees that fifty percent (50%) of all rental amounts and other consideration payable to Tenant in respect of the excess amount paid by the assignee or subtenant, after deduction Transfer (net of Rent, Tenant’s actual out-of-pocket transaction costs and expenses incurred in connection with consummating such assignment or sublease, including including, without limitation, brokerage commissions, advertising and legal expenses, a reasonable brokerage costs, free rent period and the reasonable tenant finish costs, which costs and expenses cost of leasehold improvements to the Premises (or a market improvements allowance in lieu thereof) paid by Tenant in connection with said assignment or subletting) in excess of the Stated Rentals for the Premises or the portion thereof subject to the Transfer shall be amortized over paid to Landlord as additional rental hereunder immediately upon Tenant’s receipt thereof. Tenant acknowledges and agrees that, notwithstanding Landlord’s consent to any Transfer, Tenant shall remain directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Stated Rentals). The consent by Landlord to any Transfer shall not be deemed in any manner to be a consent to a use not permitted under Section 1.05(a). Any consent by Landlord to a particular Transfer shall not constitute Landlord’s consent to any other or subsequent Transfer.
(e) For purposes of this Section 9.01, if Tenant is a corporation, the shares of which at the time of execution of this Lease or during the term hereof are or shall be held by fewer than one hundred (100) persons, and if at any time during the term of this Lease a majority or controlling amount of shares shall be transferred other than by bequest or inheritance without the prior written consent of Landlord, then such transfer of shares shall be deemed to be an assignment or sublease to determine such excessof this Lease.
8.1.3 (f) Notwithstanding anything stated herein to the contraryforegoing, it is anticipated that Tenant will soon finalize its public offering and will become a corporation. The newly incorporated entity will be named Bois d’Arc Energy Corporation, a Nevada corporation. Upon the effective date of the incorporation, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) of all or substantially represents and warrants that all assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates including, without limitation, its leasehold interest in the business thereof; Premises granted pursuant to this Lease, will be transferred to Bois d’Arc Energy Corporation and (iv) any entity occupying space in the Leased Premises principally for the purpose new corporation shall assume all of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assigneeTenant’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of rights and obligations under this Lease. As used in Tenant shall provide written notice to Landlord when the completion of this Lease, incorporation has occurred and the term “Affiliate” effective date of such occurrence. Such public offering shall mean any person or entity controlling, controlled by or under common control with Tenant or not be a Transfer that requires Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control’s consent hereunder.
Appears in 1 contract
Assignment or Sublease by Tenant. 8.1.1 Except (a) Tenant shall not assign this Lease, sublet all or any part of the Premises or allow the Premises to be used or occupied by others (any such event being referred to herein as hereinafter expressly provideda (“Transfer”)), if Tenant desires to assign or mortgage or otherwise encumber its leasehold estate under this Lease or sublet its property within the Leased Premises, without Landlord’s prior written consent, which shall not be unreasonably withheld, condition or delayed. It shall be reasonable for Landlord to withhold its consent if the use proposed to be made of the Premises or any part thereof by such prospective tenant would exceed the Design Standards (subletting, as defined in Exhibit C) for the purposes hereofBuilding systems, includes the granting of concessions equipment or licenses for the occupancy thereof)facilities; provided, Tenant may do so, subject to the following:
(i) At the time of any such assignment or subletting, this Lease is in full force and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 belowhowever, Tenant shall notify have the right to upgrade and improve, at its sole cost and expense and in accordance with Section 5.2 of this Lease, the Building systems, equipment and facilities in order to accommodate any excess use or supplemental capacity required by such assignee or sublessee (as permitted hereunder) in connection with such assignee’s or sublessee’s use of the applicable Building(s), in order to obtain Landlord’s consent for the Transfer.
(b) Tenant shall give Landlord at least twenty (20) days’ advance written notice of its desire any proposed Transfer, stating the anticipated terms thereof and all relevant information on the proposed transferee requested by Landlord to assign or sublet to the extent allowed by
(1) the name and address of the proposed assignee or sublessee at least ten subtenant; (102) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy counterpart of the proposed sublease agreement of assignment or assignment not less than five sublease; (53) reasonably satisfactory information as to the nature and character of the business of the proposed assignee or subtenant, and as to the nature of its proposed use of the space; and (4) any other information reasonably requested by Landlord. Landlord shall then have a period of twenty (20) days in advance. Within five (5) business days after following receipt of Tenant’s such notice of its intent within which to sublease or assign, notify Tenant in writing (which notice may be delivered via email to the email address to be provided by Tenant in the Assignment Request) that Landlord shall give Tenant written notice of Landlord’s election elects to either (Ai) to consent to the proposed transactionTransfer, or (Bii) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effectrefuse consent. If Landlord fails to timely make respond to Tenant’s request within the twenty (20) day period set forth above, Landlord’s failure to respond shall be deemed approval by Landlord of the proposed assignment/sublease.
(c) If Landlord consents to a Transfer, or in the event of a Permitted Transfer (as defined below), Tenant shall remain directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent); provided, however, if any approved assignee or Permitted Transferee has a net worth greater than or equal to the Threshold Stockholder’s Equity (as defined below) at the time of such electionTransfer or Permitted Transfer (as applicable), as evidenced by financial statements reasonably acceptable to Landlord, then Landlord will shall release Tenant in writing from liability for all obligations of Tenant hereunder arising or accruing after the effective date of such Transfer or Permitted Transfer, as applicable. For the avoidance of doubt, in no event shall Tenant be released from any liability arising or accruing prior to the effective date of such Transfer or Permitted Transfer, as applicable.
(d) The consent by Landlord to any Transfer shall not be deemed in any manner to be a consent to a use not permitted under Section 1.3(a). Any consent by Landlord to a particular Transfer shall not constitute Landlord’s consent to any other or subsequent Transfer. In furtherance of the foregoing, but not in limitation thereof, the acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article IX shall not be deemed to have elected option (A);be a consent or approval by Landlord to any such Transfer, nor shall the same be deemed a waiver of any right or remedy of Landlord hereunder as a result thereof.
(iiie) Tenant agrees to pay Landlord’s reasonable, out-of-pocket attorneys’ fees and costs in connection with Landlord’s review and approval of any proposed subletting or assignment not to exceed $2,500.00 (such reimbursement to be made whether or not Landlord shall only be permitted to withhold provides its consent to a proposed assignment or subletting if Landlord reasonably determines Transfer hereunder).
(and notifies Tenant within the above time periodf) that (aNotwithstanding Section 9.1(a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms above, provided no Event of Default has occurred under this Lease, including without limitation, Section 1.3, (b) the operations of the proposed assignee or subtenant would create Tenant may effect a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess.
8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the rightTransfer, without having to obtain Landlord’s prior approval thereforconsent, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of TenantAffiliated Entity, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (any corporation, limited partnership, limited liability company or an Affiliate of the purchaser) of all other business entity in which or substantially all assets of Tenantwith which Tenant is merged or consolidated, or (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; providedcorporation, howeverlimited partnership, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control.limited liability company or
Appears in 1 contract
Samples: Lease Agreement (Bandwidth Inc.)
Assignment or Sublease by Tenant. 8.1.1 Except (a) Tenant shall not assign this Lease, sublet all or any part of the Premises or allow the Premises to be used or occupied by others (any such event being referred to herein as hereinafter expressly provideda (“Transfer”), if Tenant desires to assign or mortgage or otherwise encumber its leasehold estate under this Lease or sublet its property within the Leased Premises, without Landlord’s prior written consent, which shall not be unreasonably withheld or delayed subject to Section 9.1 (c) below.
(b) Tenant shall give Landlord at least sixty (60) days’ advance written notice of any proposed Transfer, stating the anticipated terms thereof and all relevant information on the proposed transferee requested by Landlord. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to notify Tenant in writing that Landlord elects to either (i) to terminate this Lease as to the space so affected, in which event Tenant shall be relieved of all obligations hereunder as to such space arising from and after such date, however, Tenant shall reserve the right to withdraw its request to Transfer in the event Landlord chooses to Terminate the lease (ii) consent to the proposed Transfer, or (iii) refuse consent on reasonable grounds as set forth Section 9.1 (c) below. In addition, in the event Tenant has delivered a notice to abandon the entire Premises under Section 8.2(e) hereof, and such abandonment continues for a period of six (6) months, Landlord shall have the right to terminate this Lease at any time following the expiration of such six (6) month period so long as the abandonment continues.
(c) Landlord shall not unreasonably withhold its consent to a proposed Transfer provided all of the following conditions have been met: (i) Tenant is not in default under the Lease, (ii) the nature and character of the proposed transferee, its creditworthiness, business and activities or its intended use of the Premises are consistent with the standards of the Building in Landlord’s sole judgment, (iii) the proposed transferee is not then an occupant of any part thereof of the Building unless Landlord does not have adequate space in the Building or a party with whom Landlord is then negotiating to lease space within the Building as evidenced by a written proposal made by Landlord to the proposed transferee (subletting, or from the proposed transferee to Landlord) within the six (6) month period prior to Tenant’s request for consent for the purposes hereofproposed Transfer; (iv) the proposed occupancy would not impose an extra burden upon the Building systems or Landlord’s ability to provide services to the other tenants of the Buildings, includes (iv) the granting of concessions such consent would not constitute a default under any other agreement to which Landlord is a party or licenses by which Landlord is bound, including, without limitation, any exclusives previously granted to other tenants of the Project and any restrictions on leasing contained in any other leases of space in the Building, (v) the proposed transferee is not a governmental agency or an entity with diplomatic immunity, or (vi) the requested assignment or sublease does not modify the Lease or the rights, obligations, or liabilities of either Landlord or Tenant under this Lease. Tenant acknowledges that the foregoing conditions are a reasonable basis for Landlord to withhold its consent to a Transfer and that if all of the foregoing conditions are not satisfied, Landlord may withhold its consent to a proposed Transfer in Landlord’s sole and absolute discretion.
(d) If Landlord consents to a Transfer, Tenant agrees that Fifty Percent (50%) of all Rent amounts and other consideration payable to Tenant in respect of the Transfer in excess of the Rent for the occupancy thereof), Tenant may do so, Premises or the portion thereof subject to the following:Transfer shall be paid to Landlord as Additional Rent hereunder immediately upon Tenant’s receipt thereof after deduction for all reasonable brokerage commissions, free rent and tenant improvement allowances actually paid by Tenant in conjunction with such Transfer, or at Landlord’s option such payments can be made directly to Landlord by such sublessee or assignee. Tenant acknowledges and agrees that, notwithstanding Landlord’s consent to any Transfer, Tenant shall remain directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent). The consent by Landlord to any Transfer shall not be deemed in any manner to be a consent to a use not permitted under Section 1.5(a). Any consent by Landlord to a particular Transfer shall not constitute Landlord’s consent to any other or subsequent Transfer. In furtherance of the foregoing, but not in limitation thereof, the acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article IX shall not be deemed to be a consent or approval by Landlord to any such Transfer, nor shall the same be deemed a waiver of any right or remedy of Landlord hereunder as a result thereof.
(ie) At If Tenant is a partnership or limited liability company, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners or members owning as of the time date hereof a controlling or majority interest in Tenant shall be deemed a voluntary assignment of this Lease subject to the provisions of this Section 9.1. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or transfer (whether by way of one or more sales or transfers) of the controlling or majority interest as of the date hereof in Tenant’s capital stock shall be deemed a voluntary assignment of this Lease and subject to the provisions of this Section 9.1.
(f) Tenant agrees to pay Landlord’s reasonable attorneys’ fees and costs in connection with Landlord’s review and approval of any such proposed subletting or assignment or sublettingand an administrative fee of one thousand dollars ($1,000).
(g) Notwithstanding Section 9.1(a) above, this Lease is in full force and effect and there is provided no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 belowhas occurred under this Lease, Tenant shall notify may effect a Transfer to any Affiliated Entity without Landlord’s prior consent provided (i) Tenant describes in writing to Landlord of its desire to assign the transaction in which the Transfer will be effective, or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide provides Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assignform Transfer documents, Landlord shall give Tenant written notice of Landlord’s election (A) to consent prior to the proposed transaction, or Transfer; (Bii) not Tenant identifies the Affiliated Entity to consent which Tenant intends to effect a Transfer prior to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
Transfer; and (iii) Tenant delivers to Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations copy of the proposed assignee executed Transfer documents on a Landlord-approved form to Landlord within thirty (30) days after such Transfer. A Transfer to an Affiliated Entity shall not release Tenant from any of its liabilities or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of obligations under this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Transfer documents shall provide that Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess.
8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) of all or substantially all assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such control.shall
Appears in 1 contract
Samples: Lease Agreement (Q2 Holdings, Inc.)
Assignment or Sublease by Tenant. 8.1.1 Except A. Tenant shall not sublet the Premises (or any portion thereof) or assign this Lease (or any interest herein), nor shall any assignment or sublease occur by operation of law, without the prior written consent of Landlord, which Landlord shall not unreasonably withhold. Notwithstanding the foregoing, as hereinafter expressly providedan alternative to granting consent to a proposed sublease or assignment, Landlord shall have the right, in its sole discretion, to elect: (i) if Tenant desires to assign this Lease or sublet the Leased Premises or any part thereof (subletting, for the purposes hereof, includes the granting of concessions or licenses for the occupancy thereof), Tenant may do so, subject to the following:
(i) At the time of any such assignment or subletting, this Lease is in full force and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
(iii) Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations of the proposed assignee or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (caggregate) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share more than fifty percent (50%) of the excess amount paid Premises, to sublet from Tenant the portion of the Premises proposed by Tenant to be sublet upon the same terms as the proposed sublet (but in no event shall the rental rate thereunder be greater than the rental rate hereunder); or (ii) if Tenant desires to assign this Lease (other than pursuant to Section 16.01.C hereof), to terminate this Lease as of the proposed effective date of the assignment. In no event, however, shall Tenant be permitted to sublease the Premises or assign this Lease if Tenant is then in Default under this Lease. In the event of any assignment or sublease pursuant to the terms of this Article XVI, Tenant shall remain liable for all of its obligations under this Lease, including but not limited to payment of Rent. Landlord’s consent to particular assignment or sublease pursuant to this Article XVI shall not constitute consent to any other assignment or sublease.
B. If Tenant should desire to assign this Lease or sublet the Premises, Tenant shall give Landlord written notice thereof specifying: (i) the name, current address and business of the proposed assignee or subtenantsublessee, (ii) the amount and location of the space within the Premises proposed to be so subleased, (iii) the proposed effective date and duration of the assignment or sublease, (iv) the proposed rent and other consideration to be paid to Tenant by such assignee or sublessee, and (v) all other information reasonably required by Landlord to evaluate the proposed assignment or sublease. Landlord agrees to notify Tenant in writing, within ten (10) business days after deduction of Rent, Tenant’s actual costs written request, whether Landlord consents to a proposed sublease. If Landlord fails to respond to Tenant within the aforesaid ten (10) business day period, Tenant shall have the right to send a second (2nd) written notice to Landlord, stipulating, in bold lettering, that, pursuant to this Section l6.01.A hereof, Landlord shall be deemed to have consented to the proposed sublease if Landlord fails to respond to Tenant’s request within five (5) business days after Landlord’s receipt thereof. If Landlord fails to notify Tenant whether Landlord consents to the proposed sublease within five (5) business days after receiving such notice, and expenses incurred so long as such notice is in connection with the form stipulated herein, then Landlord shall be deemed to have consented to such sublease. If Landlord consents to such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costsTenant shall deliver to Landlord copies of all documents executed in connection therewith, which costs and expenses documents shall be amortized over the term in form and substance reasonably satisfactory to Landlord, and which documents shall require such assignee at sublessee to comply with all terms of the this Lease on Tenant’s part to be performed: No acceptance by Landlord of any rent or any other sum of money from any sublessee or assignee shall be deemed to constitute Landlord’s consent to any assignment or sublease sublease. If Landlord permits Tenant to determine such excess.
8.1.3 Notwithstanding anything stated herein to sublet the contraryPremises or assign this Lease, and the rental rate thereunder exceeds the rental rate hereunder, Tenant shall at all times during remit to Landlord as Additional Rent, as and when Rent hereunder becomes due, fifty percent (50%) of the Term difference between the rent due under the sublease or assignment and the Rent due hereunder, less reasonable expenses incurred by Tenant in subleasing the space or assigning this Lease.
C. Notwithstanding the foregoing provisions of this Section 16.01, Tenant shall have the right, upon prior written notice to Landlord, but without having to obtain Landlord’s prior approval thereforconsent, and provided Tenant is not then in Default, to assign this Lease Lease, or to sublease sublet all or any portion part of the Leased Premises Premises, to (i) any Affiliate (defined below) of entity resulting from a merger or consolidation with Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) any corporation succeeding to all the purchaser (or an Affiliate of the purchaser) of all or substantially all business and assets of Tenant, or (iii) any partnership or joint venture in which Tenant or an Affiliate affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its AffiliatesTenant; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use net worth of the Leased Premises violates surviving or successor entity or the use or other provisions affiliate is at least equal to the net worth of Tenant as of the date of this Lease. As used in ; and provided, further, that Tenant shall remain unconditionally liable for Tenants obligations under this Lease. For purposes hereof, the term “Affiliate” shall mean an affiliate of Tenant is any person entity which controls, is controlled by, or entity controlling, controlled by or is under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such controlTenant.
Appears in 1 contract
Assignment or Sublease by Tenant. 8.1.1 Except A. Tenant shall not sublet the Premises (or any portion thereof) or assign this Lease (or any interest herein), nor shall any assignment or sublease occur by operation of law, without the prior written consent of Landlord, which consent shall be given within ten (10) business days of Landlord’s receipt of Tenant’s written notification and which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing as hereinafter expressly providedan alternative to granting consent to either (i) a proposed sublease of all (but not less than all) of the Premises for the balance of the terms of the Lease or (ii) an assignment of the Lease for the balance of the terms of the Lease; Landlord shall have the right, in its sole discretion, to elect: (a) to sublet from Tenant the Premises upon the same terms as the proposed sublet; or (b) to terminate this Lease as of the proposed effective date of the assignment or sublease. In no event, however, shall Tenant be permitted to sublease the Premises or assign this Lease if Tenant desires is then in Default under this Lease. In the event of any assignment or sublease pursuant to the terms of this Article XVI, Tenant shall remain liable for all of its obligations under this Lease, including, but not limited to, payment of Rent. Landlord’s consent to a particular assignment or sublease pursuant to this Article XVI shall not constitute consent to any other assignment or sublease.
B. If Tenant should desire to assign this Lease or sublet the Leased Premises or any part thereof (subletting, for the purposes hereof, includes the granting of concessions or licenses for the occupancy thereof)Premises, Tenant may do so, subject to the following:
shall give Landlord written notice thereof specifying: (i) At the time of any such assignment or sublettingname, this Lease is in full force current address and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
(iii) Landlord shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations of the proposed assignee or subtenant would create a density level in excess of four sublessee, (4ii) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion amount and location of the Buildingspace within the Premises proposed to be so subleased, or (ciii) the proposed effective date and duration of the assignment or sublease, (iv) the proposed rent to be paid to Tenant by such assignee or sublessee, and (v) all other information reasonably required by Landlord to evaluate the proposed assignment or sublease. If Landlord consents to such assignment or sublease, Tenant shall deliver to Landlord copies of all documents executed in connection therewith, which documents shall be in form and substance reasonably satisfactory to Landlord, and which documents shall require such assignee or sublessee is a governmental entity;
(iv) Any assignment to comply with all terms of this Lease on Tenant’s part to be performed. No acceptance by Tenant shall only be Landlord of the entirety any rent or any other sum of this Lease;
(v) Any such assignment shall entitle the money from any sublessee or assignee to, and shall be subject to, all deemed to constitute Landlord’s consent to any assignment or sublease. If Landlord permits Tenant to sublet the terms, covenants and conditions of Premises or assign this Lease, and any assignee must assume in such assignment all the rights and obligations of rental rate thereunder exceeds the assignor rental rate hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share remit to Landlord as Additional Rent, as and when Rent hereunder becomes due, fifty percent (50%) of the excess amount paid by difference between the assignee rent due under the sublease or subtenantassignment and the Rent due hereunder, after deduction of Rent, Tenant’s actual costs and less reasonable expenses incurred by Tenant in connection with such assignment subleasing the space or sublease, including reasonable brokerage costs, reasonable tenant finish costsassigning this Lease, which costs and expenses shall be amortized over deducted up front before any profits are remitted to Landlord. In the term event of multiple subleases, all profits shall be calculated in the assignment or sublease aggregate. The aforementioned rights of this Section 16.01.B. shall not apply to determine such excesstransfer to a Permitted Transferee pursuant to Section 16.01.B. below.
8.1.3 C. Notwithstanding anything stated herein to the contraryforegoing provisions of this Section 16.01, Tenant shall at all times during the Term have the right, upon prior written notice to Landlord, but without having to obtain Landlord’s prior approval thereforconsent, and provided Tenant is not then in Default, to assign this Lease Lease, or to sublease sublet all or any portion part of the Leased Premises Premises, to (i) any Affiliate (defined below) of entity resulting from a merger or consolidation with Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) any corporation succeeding to all the purchaser (or an Affiliate of the purchaser) of all or substantially all business and assets of Tenant, (iii) any partnership or joint venture in a company with which Tenant has a teaming or an Affiliate other business relationship (so long as Tenant occupies at least fifty percent (50%) of Tenant is a partner the Premises and such company complies with the Permitted Use set forth in Article I, Section O of the Premises), or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose affiliate of providing services to Tenant or its Affiliates(each, a “Permitted Transferee”); provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use net worth of the Leased Premises violates surviving or successor entity or the use or other provisions affiliate is at least equal to the net worth of Tenant as of the date of the assignment; and provided, further, that Tenant shall remain unconditionally liable for Tenant’s obligations under this Lease. As used in this LeaseFor purposes hereof, the term “Affiliate” shall mean an affiliate of Tenant is any person entity which controls, is controlled by, or entity controlling, controlled by or is under common control with Tenant.
D. Notwithstanding anything in this Lease to the contrary, if Tenant or Landlordmakes a transfer to a Permitted Transferee, as applicable. “Control” as used herein means assigns the power, directly or indirectly, entire lease to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities ofa third party, or subleases the possession of entire Premises for the right full remaining Term to vote in a third party, all rights under the ordinary direction of its affairs at least fifty-one percent (51%) of Lease including, but not limited to, expansion, renewal, signage and sublease / assignment rights shall convey as if such Permitted Transferee or third party assignee or sublessee was the voting interest in, original Tenant hereunder; provided that renewal rights shall not transfer to any person third party sublessee and no third party assignee or entity shall be presumed to constitute sublessee may further convey any such controlrights.
Appears in 1 contract
Samples: Deed of Lease (Ats Corp)
Assignment or Sublease by Tenant. 8.1.1 Except as hereinafter expressly provided, if (a) If Tenant desires should desire to assign this Lease or sublet the Leased Premises or any part thereof (subletting, for following initial occupancy of the purposes hereof, includes the granting of concessions or licenses for the occupancy thereof)Premises by Tenant, Tenant may do soshall give Landlord written notice of such desire at least thirty (30) days in advance of the date on which Tenant desires to make such assignment or sublease. The notice shall include the identity of the proposed assignee or sublessee, subject current financial data of the proposed sublessee or assignee, its nature of business, and intended use of the Premises, and shall specify the financial terms, including rental, commissions, tenant build-out allowances and other inducements, and the term of the proposed sublease or assignment. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to the following:
notify Tenant in writing that Landlord elects to either (i) At the time of any such assignment permit Tenant to assign or subletting, sublet this Lease to the party specified in the notice, or (ii) reject the proposed assignee or sublessee (which it may only do if such party is not creditworthy, financially responsible or of a kind or type customarily found in the Building, or whose operations in the Building or proposed use of the Premises would not be in keeping with and would detract from, the operations of the Project or the other tenants in the Building), and continue this Lease in full force and effect and there is no Event as to the space so affected. If Landlord should fail to notify Tenant in writing of Default by Tenant then in existence;
such election within said period, or, if it elects option (ii) Except as set forth above, shall fail to state in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any notice reasonably specific reasons for such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assignrejection, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, or (B) not to consent to the proposed transaction, in which event this Lease shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);
(iiii) above. Tenant shall be responsible for reimbursing Landlord shall only be permitted for all reasonable costs incurred by Landlord and related to withhold its consent to a such proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Leasesubletting, including without limitation, Section 1.3administrative costs, any build-out or tenant improvements or restoration costs incurred by Landlord in connection therewith, and attorneys' fees, and Tenant shall pay the same to Landlord within thirty (30) days following Landlord's demand therefor. If the aggregate rental, bonus or other consideration paid by any such assignee or sublessee for any such space exceeds the sum of (a) Tenant's Base Rental and Tenant's Additional Rental or Tenant's Estimated Additional Rental, as the case may be, to be paid to Landlord for such space during such period, plus (b) the operations of the proposed assignee or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual 's costs and expenses actually incurred in connection with such assignment or sublease, including consisting of reasonable brokerage costsfees, reasonable tenant finish costscosts of finishing out or renovating the space affected, reasonable market cash rental concessions, which costs and expenses shall are to be amortized by Tenant over the term of the assignment or sublease sublease, then fifty percent (50%) of such excess shall be paid to determine Landlord within fifteen (15) days after such amount is paid to Tenant. Landlord shall have the same rights granted to Tenant under Section 3.4(d) to audit Tenant's books and records relating to the assignment or sublease. In addition, if such sublet space reverts to Tenant prior to the expiration of the initial Term and Tenant is unable to resublet such space for the remainder of the initial Term after using reasonable efforts with respect thereto and does not intend to use such space for the remainder of the initial Term, then Tenant shall notify Landlord of such fact and thereafter be entitled to recalculate the fifty percent (50%) excess (if any) paid to Landlord in connection with such subletting so as to include as one of Tenant's costs deducted from such excess the Base Rent required to be paid by Tenant to Landlord during the remainder of the initial Term on such sublet space, in which event Landlord shall refund to Tenant any portion of such excess that would not have been paid to Landlord had such additional Base Rent been taken into account in the original calculation thereof; provided, that (A) in no event shall Landlord ever be required to pay to Tenant more than the refund of Landlord's share of such excess profits received by Landlord from the subletting of such space by Tenant as described above, and (B) Landlord shall have the option, in lieu of refunding such excess, to recapture such space from Tenant for the remainder of the Term.
8.1.3 (b) Each sublessee or assignee shall fully observe all covenants of this Lease, including without limitation, the provisions of Article V, and no consent by Landlord to an assignment or sublease shall be deemed in any manner to be a consent to a use not theretofore permitted under Article V. No assignment or subletting by Tenant shall relieve Tenant of any obligation under this Lease, and Tenant shall remain fully liable hereunder. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this Section 9.1 shall be void and shall constitute a default by Tenant hereunder. Any consent by Landlord to a particular assignment or sublease shall not constitute Landlord's consent to any other or subsequent assignment or sublease, and any proposed sublease or assignments by a sublessee of Tenant shall be subject to the provisions of this Section 9.1 as if it were a proposed sublease or assignment by Tenant. The restriction against an assignment or sublease described in this Section 9.1 shall be deemed to include a restriction against tenant's mortgaging its leasehold estate, as well as against an assignment or sublease which may occur by operation of law. If, at the time a default occurs under this Lease, the Premises or any part thereof have been assigned or sublet, Landlord, in addition to any other remedies herein provided or available at law or in equity, may, at its option, collect directly from such assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply such rent against the Rent due to Landlord from Tenant hereunder, and no such collection shall be construed to constitute a novation or a release of Tenant from the further performance of its obligations hereunder or a recognition of any direct rights of such assignor or subtenant in and to such space other than by, through and under Tenant.
(c) Notwithstanding anything stated herein to the contrarycontrary contained within this Article IX or this Lease, (i) Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to not assign this Lease or to sublease all or sublet any portion of the Leased Premises to any party or affiliate of any party (iother than an Affiliate of Tenant) which is then a tenant in the Building without Landlord's prior written consent if Landlord then has comparable space in the Building which could be leased to such party or affiliate, and any such attempt to the assignment or subletting shall be void and of no further force and effect, and (ii) Tenant shall be permitted without obtaining Landlord's prior consent or approval to assign the Lease or sublease all or a portion of the Premises to an Affiliate (defined belowas hereinafter defined) of Tenant, or to any successor entities or persons entity by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) otherwise, or to the purchaser (or an Affiliate of the purchaser) of any entity purchasing all or substantially all of the assets of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if shall relieve Tenant of any obligation under the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this LeaseLease and Tenant shall remain fully liable hereunder. As used in this Lease, the The term “"Affiliate” " shall mean and refer to any person or entity controlling, controlled by or under common control with Tenant another such person or Landlord, as applicableentity. “The term "Control” as used herein means " shall mean the powerpossession, directly or indirectly, of the power to direct or cause the direction of the everyday management and policies of the such controlled person or entity. The ; the ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities beneficial ownership of, or the possession of the right to vote 140 vote, in the ordinary direction of its affairs affairs, or at least fifty-one percent (51%) of the voting interest beneficial ownership in, any person or entity shall be presumed to constitute such control. Nothing in this Lease shall prohibit Tenant from contracting with a concessionaire for purposes of the operation of dining or food services within the Premises operated primarily for the benefit of Tenant, its employees and invitees.
Appears in 1 contract
Assignment or Sublease by Tenant. 8.1.1 Except (a) Tenant shall not assign this Lease, sublet all or any part of the Premises or allow the Premises to be used or occupied by others (any such event being referred to herein as hereinafter expressly provideda ("Transfer"), if Tenant desires to assign or mortgage or otherwise encumber its leasehold estate under this Lease or sublet its property within the Leased Premises Premises, without Landlord's prior written consent, which shall not be unreasonably withheld, conditioned or any part thereof (subletting, for the purposes hereof, includes the granting of concessions or licenses for the occupancy thereof), Tenant may do so, delayed subject to Section 9.1 (c) below.
(b) Tenant shall give Landlord at least thirty (30) days' advance written notice of any proposed Transfer, stating the following:
anticipated terms thereof and all relevant information on the proposed transferee requested by Landlord. Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant in writing that Landlord elects to either (i) At the time of any such assignment or subletting, this Lease is in full force and effect and there is no Event of Default by Tenant then in existence;
(ii) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to the proposed assignee or sublessee at least ten (10) business days in advance of the assignment or subletting (which notification shall consist of the identity of any such assignee or sublessee and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy of the proposed sublease or assignment not less than five (5) business days in advance. Within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assign, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transactionTransfer, or (Bii) refuse consent on reasonable grounds as set forth Section 9.1 (c) below.
(c) Landlord shall not to unreasonably withhold its consent to a proposed Transfer provided all of the following conditions have been met and as long as Tenant is leasing all of the Building: (i) Tenant is not in default under the Lease, (ii) the nature and character of the proposed transactiontransferee, in which event this Lease shall continue in full force its business and activities or effect. If Landlord fails to timely make such electionits intended use of the Premises are consistent with Section 1.5 of the Lease, then Landlord will be deemed to have elected option (A);
(iii) the proposed occupancy would not impose a material extra burden upon the Building systems (iv) the granting of such consent would not constitute a default under any other agreement to which Landlord shall only be permitted is a party or by which Landlord is bound, including, without limitation, any exclusives previously granted to other tenants of the Project and any restrictions on leasing contained in any other leases of space in the Building, (v) the proposed transferee is not a governmental agency or an entity with diplomatic immunity, or (vi) the requested assignment or sublease does not modify the Lease or the rights, obligations, or liabilities of either Landlord or Tenant under this Lease. Tenant acknowledges that the foregoing conditions are a reasonable basis for Landlord to withhold its consent to a proposed assignment or subletting Transfer and that if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms of this Lease, including without limitation, Section 1.3, (b) the operations all of the foregoing conditions are not satisfied, Landlord may withhold its consent to a proposed assignee or subtenant would create a density level Transfer in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;Landlord's sole and absolute discretion.
(ivd) Any assignment of this Lease by If Landlord consents to a Transfer, Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions of this Lease, and any assignee must assume in such assignment all the rights and obligations of the assignor hereunder; and including without limitation, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share fifty percent agrees that Fifty Percent (50%) of all Rent amounts and other consideration payable to Tenant in respect of the Transfer in excess amount of the Rent for the Premises or the portion thereof subject to the Transfer shall be paid to Landlord as Additional Rent hereunder immediately upon Tenant's receipt thereof after deduction for all reasonable brokerage commissions, free rent, and tenant improvement allowances actually paid by Tenant in conjunction with such Transfer and Tenant's reasonable attorneys fees arising therefrom, or at Landlord's option such payments can be made directly to Landlord by such sublessee or assignee. Tenant acknowledges and agrees that, notwithstanding Landlord's consent to any Transfer, Tenant shall remain directly and primarily liable for the assignee performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent). The consent by Landlord to any Transfer shall not be deemed in any manner to be a consent to a use not permitted under Section 1.5(a). Any consent by Landlord to a particular Transfer shall not constitute Landlord's consent to any other or subtenantsubsequent Transfer. In furtherance of the foregoing, after deduction but not in limitation thereof, the acceptance by Landlord of Rentthe payment of Rent following any Transfer prohibited by this Article IX shall not be deemed to be a consent or approval by Landlord to any such Transfer, nor shall the same be deemed a waiver of any right or remedy of Landlord hereunder as a result thereof.
(e) If Tenant is a partnership or limited liability company, a withdrawal or change, whether voluntary, involuntary or by operation of law, of partners or members owning as of the date hereof a controlling or majority interest in Tenant shall be deemed a voluntary assignment of this Lease subject to the provisions of this Section 9.1. If Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant’s actual , or, if Tenant is an entity other than a corporation whose stock is publicly traded on the American public securities exchange, the sale or transfer (whether by way of one or more sales or transfers) of the controlling or majority interest as of the date hereof in Tenant's capital stock shall be deemed a voluntary assignment of this Lease and subject to the provisions of this Section 9.1.
(f) Tenant agrees to pay Landlord's reasonable attorneys' fees and costs and expenses incurred in connection with Landlord's review and approval of any proposed subletting or assignment and an administrative fee of one thousand dollars ($1,000).
(g) Notwithstanding Section 9.1(a) above, provided no Event of Default has occurred under this Lease, Tenant may effect a Transfer to any Affiliated Entity without Landlord's prior consent provided (i) Tenant describes in writing to Landlord the transaction in which the Transfer will be effective within thirty days of the Transfer; (ii) Tenant identifies the Affiliated Entity to which Tenant intends to effect a Transfer prior to the Transfer; and (iii) Tenant delivers to Landlord a copy of the executed Transfer documents to Landlord within thirty (30) days after such assignment Transfer. A Transfer to an Affiliated Entity shall not release Tenant from any of its liabilities or subleaseobligations under this Lease, including reasonable brokerage costsand the Transfer documents shall provide that Tenant shall remain primarily liable under this Lease jointly and severally with the Affiliated Entity. In no event shall any such Transfer have any material adverse financial impact on Tenant's financial status. Tenant shall, reasonable tenant finish costsprior to any such Transfer, which costs and expenses provide written evidence reasonably satisfactory to Landlord that there shall be amortized over no material adverse financial impact on Tenant resulting from such Transfer. For purposes hereof, "Affiliated Entity" shall mean an entity which (i) controls, is controlled by, or is in common control with Tenant; or (ii) results from the term merger or consolidation with Tenant, or (iii) acquires all or substantially all of the assignment assets of, interest in, or sublease to determine such excess.
8.1.3 stock of Tenant. Notwithstanding anything stated herein to the contrary, in no event may Tenant shall at all times during the Term have the right, without having effect a Transfer to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization an Affiliated Entity whose primary assets are leaseholds or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) non-income producing assets, and any transfer of all or substantially all assets a substantial portion of Tenant, (iii) any partnership or joint venture in which Tenant or an Affiliate of Tenant 's assets separate from the Transfer is a partner or a joint venturer that actively participates in the business thereof; and (iv) any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; provided, however, that no such assignment or subletting may be made if the assignee’s or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such controlexpressly prohibited.
Appears in 1 contract
Samples: Lease Agreement (Q2 Holdings, Inc.)
Assignment or Sublease by Tenant. 8.1.1 (a) Except as hereinafter otherwise expressly providedset forth in Section 8.l (b) below, if Tenant desires will not assign this Lease or sublet all or any portion of the Leased Premises, nor pledge, mortgage or encumber any of Tenant’s interest in this Lease or the Leased Premises (or any portion of either), nor assign or transfer by operation of law this Lease or any of Tenant’s interest herein or in and to the Leased Premises, in any such case without Landlord’s prior written consent. In the event Tenant should desire to assign this Lease or sublet the Leased Premises or any part thereof thereof, or to allow the Leased Premises to be used or occupied by others, or to encumber any of the same, Tenant shall give Landlord written notice (subletting“Tenant’s A/S Notice”) (which notice shall specify the duration of said desired sublease, for assignment or other transfer, the purposes hereofdate same is to occur, includes the granting exact location of concessions the space affected thereby and the proposed rentals on a square foot basis chargeable thereunder and the final document to be used in such assignment or licenses for sublet) of such desire at least twenty (20) days in advance of the occupancy thereofdate on which Tenant desires to make such assignment, sublease or other transfer or to allow such a use or occupancy. Subject to the terms of this Section 8.1(a), Landlord shall then have a period of fifteen (15) days following receipt of such notice within which to notify Tenant may do so, in writing that Landlord elects either: (i) subject to the following:
(i) At terms and provisions of this Section 8.1 below, to permit Tenant to assign this Lease or sublet such space for the time duration so specified by Tenant in its notice, subject, however to the prior written approval by Landlord of any such the proposed assignment or sublettingsublease, this Lease is which approval shall not be unreasonably withheld, conditioned or delayed so long as the following conditions are all satisfied: (1) the nature and character of the proposed assignee or sublessee, its business and activities and intended use of the Leased Premises are in full force Landlord’s reasonable judgment consistent with the Building Standards and effect and there is no Event of Default by Tenant then in existence;
Comparable First-Class Buildings, (ii2) Except as set forth in Section 8.1.2 below, Tenant shall notify Landlord of its desire to assign or sublet to neither the proposed assignee or sublessee at least ten (10nor any party which, directly or indirectly, controls or is controlled by or is under common control with the proposed assignee or sublessee) business days in advance is (i) then an occupant of any party of the assignment Office Building actively negotiating for additional lease space in the Office Building or subletting (which notification shall consist of ii) a party with whom Landlord is then actively negotiating to lease space in the identity of any such assignee Office Building, (i.e., Landlord has agreed to terms or sublessee the parties are negotiating a lease or other occupancy agreement within the preceding three (3) month period) provided Landlord has, or within the next 6 months anticipates having, comparable space (taking into account all relevant factors) available for lease in the Office Building for a comparable term, (3) the form and the location and area of the Leased Premises affected by any such assignment or subletting) and provide Landlord with a copy substance of the proposed sublease or instrument of assignment is acceptable to Landlord (which acceptance by Landlord shall not less than five be unreasonably withheld, conditioned or delayed) and is expressly subject to all of the terms and provisions of this Lease and to any matters to which this Lease is subject, and (4) the proposed occupancy would not increase the office cleaning requirements or impose an extra burden upon the services to be supplied by Landlord to Tenant hereunder; or (ii) to deny Tenant’s request to assign this Lease or sublet the Premises if Landlord reasonably withholds its approval of the proposed assignee or sublessee. Notwithstanding the foregoing, if Landlord fails to respond to a request for consent to an assignment or subletting proposed by Tenant within fifteen (15) days after Landlord’s receipt of all of the information required under this Article 8, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”), which shall include all material previously delivered to Landlord together with Tenant’s A/S Notice, and set forth on the first page thereof the following statement in bold capital letters: IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) business days in advanceBUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE ENTITLED TO ENTER INTO THE PROPOSED [ASSIGNMENT] [SUBLEASE] DESCRIBED IN THE NOTICE ENCLOSED HEREWITH, WHICH WAS PREVIOUSLY SUBMITTED TO LANDLORD AND TO WHICH LANDLORD HAS FAILED TO TIMELY RESPOND. Within If Landlord fails to respond to a Second Request within five (5) business days after receipt of Tenant’s notice of its intent to sublease or assignby Landlord, Landlord shall give Tenant written notice of Landlord’s election (A) to consent to the proposed transaction, assignment or (B) not sublease as to consent to which the proposed transaction, in which event this Lease Second Request is submitted shall continue in full force or effect. If Landlord fails to timely make such election, then Landlord will be deemed to have elected option (A);be approved by Landlord, and Tenant shall be entitled to enter into such transaction, provided that such assignment or sublease complies with the requirements of this Article 8 and all other provisions of this Lease applicable thereto.
(iiib) Landlord Each sublessee or assignee shall only be permitted to withhold its consent to a proposed assignment or subletting if Landlord reasonably determines (and notifies Tenant within the above time period) that (a) the business or activities to be conducted at the Leased Premises by the proposed assignee or sublessee would violate the terms fully observe all covenants of this Lease, including including, without limitation, Section 1.3, (b) the operations of the proposed assignee or subtenant would create a density level in excess of four (4) people per one thousand (1000) square feet of Net Rentable Area in the applicable portion of the Building, or (c) the proposed assignee or sublessee is a governmental entity;
(iv) Any assignment provisions of this Lease by Tenant shall only be of the entirety of this Lease;
(v) Any such assignment shall entitle the assignee to, and shall be subject to, all the terms, covenants and conditions Section 8.1 of this Lease, and no consent by Landlord to an assignment or sublease shall be deemed in any assignee must assume in such manner to be a consent to a use not permitted under Section 1.3 hereof. No assignment all the rights and obligations or subletting by Tenant shall relieve Tenant of the assignor hereunder; and including without limitationany obligation under this Lease, any renewal rights, parking rights, Building identity and signage rights, and all other rights and appurtenances provided for hereunder.
8.1.2 Landlord and Tenant shall share remain fully liable hereunder; provided that, if (i) Landlord shall have consented to the proposed assignee pursuant to Section 8.1(a) and (x) if such assignee is a publicly traded company, the Public Company Financial Test (as defined below) shall be satisfied immediately after such assignment (and Tenant shall have provided Landlord with proof thereof reasonably acceptable to Landlord) or (y) if such assignee is not a publicly traded company, the Private Company Financial Test (as defined below) shall be satisfied immediately after such assignment (and Tenant shall have provided Landlord with proof thereof reasonably acceptable to Landlord) or (ii) (x) if a Permitted Transfer shall have occurred and the transferee is a publicly traded company, the Public Company Test shall be satisfied by the applicable transferee immediately after such transaction (and Tenant shall have provided Landlord with proof therefor reasonably acceptable to Landlord) or (y) if a Permitted Transfer shall have occurred and the transferee is not a publicly traded company, the Private Company Test shall be satisfied by the applicable transferee immediately after such transaction (and Tenant shall have provided Landlord with proof therefor reasonably acceptable to Landlord), then, in any such case, the Tenant named herein (i.e., Pros, Inc.) shall be relieved of all obligations under this Lease which accrue from and after the date of such transaction. “Public Company Financial Test” shall mean that, as of the applicable date of determination, the applicable entity has a market capitalization greater than One Billion Dollars ($1,000,000,000). “Private Company Financial Test” shall mean that, as of the applicable date of determination, such entity has Net Available Cash (as defined below) greater than an amount equal to three (3) times the remaining Rent due hereunder by Tenant from and after the date such assignment or transfer, as applicable, is consummated through and including the Expiration Date. “Net Available Cash” means (i) cash which is not subject to any lien, security interest or restriction and available and (ii) undrawn funds from such entity’s credit facility(ies) less any debt held by such entity having maturities prior to the Expiration Date. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this Section 8.1 shall be void and shall constitute an event of default under this Lease. Any consent by Landlord to a particular assignment or sublease shall not constitute Landlord’s consent to any other or subsequent assignment or sublease, and any proposed sublease or assignment by any assignee or sublessee shall be subject to the provisions of this Section 8.1, as if it were a proposed sublease or assignment by Tenant. The prohibition against an assignment or sublease described in this Section 8.1 shall be deemed to include a prohibition against Tenant’s mortgaging or otherwise encumbering its leasehold estate, as well as against an assignment or sublease which may occur by operation of law or by a merger, transfer or sale of stock, partnership interest or other equitable interest resulting in a change of ownership interest in Tenant of more than fifty percent (50%) of the excess amount paid by the assignee or subtenant, after deduction of Rent, Tenant’s actual costs and expenses incurred in connection with such assignment or sublease, including reasonable brokerage costs, reasonable tenant finish costs, which costs and expenses shall be amortized over the term of the assignment or sublease to determine such excess.
8.1.3 Notwithstanding anything stated herein to the contrary, Tenant shall at all times during the Term have the right, without having to obtain Landlord’s prior approval therefor, to assign this Lease or to sublease all or any portion of the Leased Premises to (i) any Affiliate (defined below) of Tenant, any successor entities or persons by virtue of merger, consolidation, liquidation, reorganization or other operation of law; (ii) to the purchaser (or an Affiliate of the purchaser) a sale of all or substantially all of the assets of TenantTenant (collectively, “Ownership Interests”), each of which shall be ineffective and void and shall constitute an event of default under this Lease unless consented to by Landlord in writing in advance. Tenant shall in any event pay and reimburse to Landlord for reasonable fees and expenses (iii) including reasonable out-of-pocket attorneys’ fees), up to a maximum of $2,500.00, as actually incurred by Landlord in connection with the processing of any partnership or joint venture in which request by Tenant or an Affiliate of Tenant is a partner or a joint venturer that actively participates in the business thereof; and (iv) with respect to any entity occupying space in the Leased Premises principally for the purpose of providing services to Tenant or its Affiliates; providedsubletting, however, that no such assignment or subletting may be made if the assignee’s other transfer, regardless of whether or sublessee’s proposed use of the Leased Premises violates the use or other provisions of this Lease. As used in this Lease, the term “Affiliate” shall mean any person or entity controlling, controlled by or under common control with Tenant or Landlord, as applicable. “Control” as used herein means the power, directly or indirectly, to direct or cause the direction of the everyday management and policies of the controlled person or entity. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote in the ordinary direction of not Landlord grants its affairs at least fifty-one percent (51%) of the voting interest in, any person or entity shall be presumed to constitute such controlconsent.
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