Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease. 25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer. 25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises. 25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following: (a) Tenant shall remain fully liable under this Lease during the unexpired Term; (b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; (c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request; (d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment; (e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment; (f) Any consent to such Transfer shall be effected on Landlord’s forms; (g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord. (h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use; (i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same; (j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and (k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2. 25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void. 25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease. 25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer. 25.8. [Intentionally omitted] 25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 6 contracts
Samples: Sublease Agreement (Atara Biotherapeutics, Inc.), Lease (CareDx, Inc.), Lease (CareDx, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, 6.1 Tenant shall notnot assign, either mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily or involuntarily, by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, otherwise) or sublet the Premises or any part hereof (eachthereof, a “Transfer”), or permit the use of the Premises by anyone other than Tenant without Landlord’s the prior written consentconsent of Landlord first being obtained. If Tenant is a corporation or a partnership, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty-one percent (51%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof or partnership interests in Tenant, as the case may be, shall constitute an assignment hereunder for which such consent Landlord may not unreasonably withhold; providedis required. Further, however, that Tenant shall have the right to not assign all or any portion of its interest under this Lease or sublet all the Premises or any portion of the Premises without Landlord’s consent thereof to any parentcorporation which controls, subsidiary is controlled by or affiliate of is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord. Any of the foregoing acts without such consent shall be void and, at the sole option of Landlord, constitute an Event of Default entitling Landlord to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law. The provisions of Section shall not apply to transactions entered into by Tenant with (i) an “Affiliate” (as herein defined) or (ii) a corporation into or with which Tenant is merged or consolidated or with an entity to which substantially all of Tenant’s assets are transferred (whether directly or by virtue of the transfer of substantially all of Tenant’s capital stock), (a “Permitted Transferee”) provided (a) such merger, consolidation or transfer of assets is not principally for the purpose of transferring the leasehold estate created hereby, and (b) such Permitted Transferee has net worth equal to Tenant as of the date of this Lease For the purposes of this Section, an Affiliate means (i) a corporation controlled by, controlling or stock of Tenant under the common control with tenant (an “Allowable Transferaffiliated corporation”)) or (ii) a partnership or joint venture in which Tenant or an affiliated corporation owns at least 30% of the general partnership or joint venture interests therein and Tenant or such affiliated corporation of Tenant has actual control of such partnership or joint venture. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding Without limiting the generality of the foregoing, in no event a corporation shall Tenant not be released from any deemed controlled by another entity unless at least 30% of each class of its obligations under this Leaseoutstanding capital stock is owned, both beneficially and of record, by such entity and such entity has actual control of such corporation. The provisions regarding the transfer of the capital stock of a corporate tenant set forth in Section 6 shall not apply to any corporation where all of its outstanding capital stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded in the “over the counter” market with quotations reported by the National Association of Securities Dealers.
25.2. 6.2 In the event that Tenant desires should desire to effect a Transfersublet the Premises or any part thereof, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)or assign this Lease, Tenant shall provide Landlord with written notice to Landlord of such desire at least sixty (the “Assignment Notice”60) containing information (including references) concerning the character days in advance of the proposed transferee, assignee effective date of such subletting or sublessee; assignment. Such notice shall include: (i) the Assignment Date; any ownership or commercial relationship between Tenant and name of the proposed transfereesublessee or assignee, (ii) the nature of business to be conducted by the proposed sublessee or assignee or sublessee; and in the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease including but not limited to a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease, all in such detail and (iv) the most recent financial statements or other financial information concerning the proposed sublessee or assignee as Landlord shall reasonably may require. At any time within twenty (20) days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) terminate this Lease as to the space affected by the proposed subletting or assignment, effective ninety (90) days from the date of Landlord’s notice, (ii) consent to the proposed subletting of the Premises or assignment of this Lease or (iii) disapprove of the proposed subletting or assignment. Landlord may elect to terminate this Lease as to the space affected by the proposed assign or subletting in its sole and absolute discretion. If Landlord does not elect to terminate this Lease, however, Landlord shall reimburse not unreasonably withhold its consent to a proposed subletting or assignment. Without limiting other situations in which it may be reasonable for Landlord to withhold its consent to any proposed assignment or sublease, Landlord and Tenant agree that it shall be reasonable for all Landlord to withhold its consent in any one or more of the following situations: (i) in Landlord’s reasonable attorneys’ fees and judgment, the proposed subtenant or assignee or the proposed use of the Premises would detract from the status of the Building as a first-class office building or would generate foot traffic or density materially in excess of the amount generated by Tenant’s business or would otherwise be in excess of that customary for the Building or would impose a materially greater load upon elevator, janitorial, security or other services than is generated by Tenant’s business or would otherwise in excess of that be customary for the Building; (ii) in Landlord’s reasonable out-of-pocket costs incurred judgment, the financial worth of the proposed subtenant or assignee does not meet the credit standards applied by Landlord in reviewing Tenantconsidering other tenants under leases with comparable terms, or Tenant shall have failed to provide Landlord with reasonable proof of the financial worth of the proposed subtenant or assignee; (iii) in Landlord’s request for such Transfer.
25.3reasonable judgment, the business history and reputation in the community of the proposed subtenant or assignee does not meet the standards applied by Landlord in considering other tenants in the Building; or (iv) the proposed subtenant or assignee shall be a then existing or prospective tenant of the Building, provided that in any event Landlord shall be entitled to exercise its right of termination in lieu of consenting to a transfer, as set forth above. Subject to obtaining Landlord’s consent in accordance with the requirements of this Section, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable order for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurbe binding on Landlord, Tenant would no longer occupy any must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the sublessee or assignee shall expressly assume all obligations of Tenant under this Lease as to the portion of the PremisesPremises subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully executed copy thereof has been received by Landlord.
25.4. As conditions precedent 6.3 Landlord and Tenant agree that fifty percent (50%) of any Rent or other consideration received or to Landlord’s consent to a Subject Transfer, Landlord may require any be received by or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account for the benefit of Tenant as a result of any consideration of any kind whatsoever (includingassignment or subletting, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental Additional Rent, Base Rent and other charges due Operating Costs and Real Estate Taxes which Tenant is obligated to pay Landlord under this LeaseLease (prorated to reflect obligations allocable to that portion of the Premises subject to such sublease or assignment), and after deducting reasonable assignment or subletting fees, which will include, but are not limited to marketing costs, legal fees, brokerage fees, construction costs and other leasing concessions, shall be payable to Landlord as Additional Rent under this Lease without affecting or reducing any other obligation of Tenant hereunder (“Excess Rent”). Landlord’s share of such Excess Rent or other consideration shall be paid by the Tenant directly to Landlord at the same time as such rent or other consideration is paid to Tenant. Concurrently with the payment of Excess Rent by Tenant to Landlord, Tenant shall pay twenty-five percent (25%) furnish Landlord with a complete statement, certified by an independent certified public accountant of all of such excess to LandlordTenant’s choice, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, setting forth in detail the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy computation of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Excess Rent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Samples: Sublease (Callidus Software Inc), Sublease (Callidus Software Inc), Lease Agreement (Taleo Corp)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange or a Permitted Transfer as defined below), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (a) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five [***] percent (25[***]%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than a Permitted Transferee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) business days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 4 contracts
Samples: Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC), Lease Agreement (Ascend Wellness Holdings, LLC)
Assignment or Subletting. 25.1. 30.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent Tenant’s right to the Premises or any part thereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, including, but not limited to, a purchaser of Tenant; ’s stock or any party assets as pan ongoing concern (“Tenant’s Affiliate”), provided that results from a merger or consolidation Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant ’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer other than an Allowable An Exempt Transfer shall be referred also include a public or private placement or offering of stock in a corporation that is Tenant to herein as a raise additional capital, including any initial public offering of such stock (collectively, an “Subject TransferAdditional Funding”). Notwithstanding , so long as following any such Additional Funding, Tenant remains substantially the foregoing, in no event shall Tenant be released from any of its obligations under this Leasesame legal entity that existed prior to such Additional Funding.
25.2. 30.2 In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 30.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 30.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz.) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to quality as “rents from real property” within the meaning of Section 850(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 30.4 As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises, but excluding the value reasonably attributable to Tenant’s business, including but not limited to, Tenant’s intellectual property and goodwill, pursuant to an Exempt Transfer) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below22.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.222.2.
25.5. 30.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article 30 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 30.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 30.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.830.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 30.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 30.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. 30.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Samples: Lease (Tocagen Inc), Lease (Tocagen Inc), Lease (Tocagen Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedA. To the extent provided under the Prime Lease, Tenant shall notnot (i) assign, either voluntarily convey, mortgage or hypothecate this Sublease or any interest under it, (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or (iii) further sublet the Premises or any part hereof thereof or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Tenant. Landlord's consent to an assignment of this Sublease or a further sublease of the Premises shall not be unreasonably withheld, a “Transfer”)conditioned or delayed, and if Landlord consents thereto, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord if such consent is required to be obtained under the Prime Lease. Any cost of obtaining Prime Landlord's consent shall be borne by Tenant.
B. Notwithstanding the provisions of subsection (A) of this Section 12, and only to the extent permitted under Section 13 of the Prime Lease, Tenant may assign its interests herein or further sublet the Premises or any portion thereof, without Landlord’s prior written consent's consent and without providing any additional rent to Landlord, which consent Landlord may not unreasonably withhold; providedto any entity which, howeverat the time of the initial assignment or sublease, that Tenant shall have the right to assign all controls, is controlled by or is under common control with Tenant, or any portion of its interest under this Lease or sublet all or any portion of entity result- ing from the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or capital stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein Tenant, in any such case as a “Subject Transfer”). Notwithstanding going concern of the foregoingbusiness that is being conducted on the Premises, provided that said assignee assumes, in no event shall Tenant be released from any full, the obligations of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree Sublease in an agreement delivered to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee C. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or sublessee’s use of the Premises subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not require any change as a guarantor or surety to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing same extent as though no assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subletting had been made.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Metaldyne Corp), Fittings Facility Sublease (Metaldyne Corp), Asset Purchase Agreement (Trimas Co LLC)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, howevercondition or delay. Notwithstanding the foregoing, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent to any parent, subsidiary or affiliate of Tenant; the Premises or any party part thereof to (a) any person that results from a merger as of the date of determination and at all times thereafter directly, or consolidation indirectly through one or more intermediaries, controls, is controlled by or is under common control with Tenant (“Tenant’s Affiliate”) provided that any such Tenant’s Affiliate taking an assignment of this Lease agrees in writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of such assignment or (b) any entity that succeeds to Tenant; ’s interest in this Lease by reason of merger, sale or any party that acquires acquisition (whereby the sale or acquisition consists of all or substantially all of Tenant’s stock or assets), consolidation or reorganization (“Tenant’s Successor”); provided that Tenant shall notify Landlord in writing at least thirty (30) days prior to the assets effectiveness of such Transfer to Tenant’s Affiliate or stock of Tenant Tenant’s Successor (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer has a net worth (as of both the day immediately prior to and the day immediately after the Exempt Transfer) that is equal to or greater than the net worth (as of both the Execution Date and the date of the Exempt Transfer) of the transferring Tenant. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”)direct or cause the direction of the management and policies of such person. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.7 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease Transfer qualifies as an Exempt Transfer;
(d) Tenant shall not be diminished or reduced by the proposed Subject Transfer. Such provide Landlord with evidence shall include, without limitation, evidence reasonably satisfactory to Landlord respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(ce) Tenant shall reimburse Landlord for Landlord’s actual reasonable out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(df) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(eg) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fh) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gi) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hj) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ik) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jl) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(ko) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.729.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.7. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than pursuant to an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease (or, in the event of a proposed sublease, Landlord shall have the option to terminate the Lease only as to the portion of the Premises proposed to be subleased) as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.8. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Samples: Sublease (Zentalis Pharmaceuticals, Inc.), Sublease (Zentalis Pharmaceuticals, LLC), Sublease (Zentalis Pharmaceuticals, LLC)
Assignment or Subletting. 25.1. 26.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that condition or delay. Tenant shall have the right to assign all Transfer without Landlord’s prior written consent the Lease or any portion of its interest under this Lease thereof or sublet all the Premises or any portion part thereof to any person or entity that as of the Premises without Landlord’s consent date of determination and at all times thereafter directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, to any parententity resulting from the merger, subsidiary consolidation, acquisition or affiliate restructuring of Tenant; , or any party that results from a merger or consolidation to the purchaser in connection with the sale of Tenant; or any party that acquires all or substantially all of the assets or stock used in connection with the business operated by Tenant at the Building (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”)direct or cause the direction of the management and policies of such person. Notwithstanding anything to the foregoingcontrary, in no event the following Sections 26.2, 26.3 and 26.9 of the Lease shall Tenant not be released from applicable to any of its obligations under this LeaseExempt Transfer.
25.2. 26.2 In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ attorney’s fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such TransferTransfer (not to exceed $3,000).
25.3. 26.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. Premises and (c) Landlord’s desire to exercise its rights under Section 26.9 to cancel this Lease.
26.4 In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 26.5 As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for LandlordIf Tenant’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation transfer of such request;
(d) If a Transfer rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any provided that Tenant may first recover transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, construction costs, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ed) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fe) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gf) There Tenant shall exist no uncured Default or Imminent Default not then be in default beyond applicable notice and cure periods hereunder of which Tenant has been given notice by Landlord.in any respect;
(hg) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ih) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(i) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(j) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(k) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kl) A list of Hazardous Materials (as defined in Section 39.7 40.8 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.240.2.
25.5. 26.6 Any Transfer that is not in compliance with the provisions of this Section 25 Article 26 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 26.7 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 26.8 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.826.9 If Tenant delivers to Landlord a Transfer Notice indicating a desire to assign the Lease or otherwise Transfer this Lease or all or substantially all of the Premises to a proposed transferee, assignee or sublessee for all or substantially all of the Term (other than an Exempt Transfer), then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]For purposes of the preceding sentence, “substantially all of the Term” shall mean that the proposed transfer would expire during the last one (1) year of the Term. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 26.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. 26.10 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 3 contracts
Samples: Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees and contractors, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that with which Tenant is consolidated, which acquires all or substantially all of the assets of Tenant, or stock which is an affiliate of Tenant (an each a “Allowable TransferPermitted Transferee”). Any Transfer other than , Landlord’s consent shall not be required, provided that the Permitted Transferee executes, acknowledges and delivers to Landlord an Allowable Transfer shall agreement whereby the Permitted Transferee agrees to be referred to herein as a “Subject Transfer”). Notwithstanding bound by all of the foregoing, covenants and agreements in no event shall Tenant be released from any this Lease arising after the effective date of its obligations under this Leasethe transfer.
25.2. 25.3 In the event Tenant desires to effect assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises to someone other than a TransferPermitted Transferee, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety one hundred eighty (90180) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), . Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to whether or not the proposed assignee or subtenant has the financial strength to satisfy the obligations contemplated by this Lease (with consideration of such transferee, assignee or sublessee (notwithstanding Tenant assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within ten (10) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent any assignment or sublease of the entire Premises to a Transfer to a transfereewhich Landlord has given consent, any such assignee or sublessee of poor reputationmust execute, lacking financial qualifications, seeking a change in acknowledge and deliver to Landlord an agreement whereby the Permitted Use, assignee or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord sublessee agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:
(a) Tenant shall remain fully liable under covenants and agreements in this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatexcept, in the event Landlord gives such proposed transfereecase of a sublease, assignee the payment of Basic Annual Rent).
25.5 Any sale, assignment, hypothecation or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should transfer of this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder subletting of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, be a breach of this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. 25.7 If Tenant sublets the Premises or any potion thereof, part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by TenantTenant by failing to pay Basic Annual Rent and Operating Expenses for two (2) consecutive months, Tenant shall have the right to collect collect, enjoy and dispose of such rent.
25.8 Notwithstanding any subletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any subtenant of the entirety of the Premises with a recognition and non-disturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on terms and conditions materially the same as the ones contained in this Lease.
25.10 In the event Tenant assigns or otherwise transfers this Lease or sublets the Premises to a transferee other than one set forth in Section 25.2, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the initial and any extended term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such transfer and payable to third parties, and after Tenant has recouped any capital costs incurred by Tenant for any improvements to the transferred space after the Term Commencement Date.
Appears in 2 contracts
Samples: Lease (Biocept Inc), Lease (Biocept Inc)
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenantthereof; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor Permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer will neither assign this Lease, or sublet the Demised Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of thereof nor encumber its interest under in this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)unless it first complies with this Article 13. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall subletting not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article 13 shall be void.
25.6. The consent by Landlord 13.02 Provided that (a) any Mortgagee, in its sole and unreviewable discretion, consents to a Transfer shall not relieve Tenant the assignment or proposed transfereesubletting (including, without limitation, the assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfersubtenant, nor shall it release as the case may be), (b) Tenant is not then in breach or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver default of any of the terms or conditions of the Lease, and (c) Landlord gives prior written consent to the proposed assignment or subletting, which consent shall not be unreasonably withheld or delayed, Tenant will be entitled to sublet the Demised Premises or a portion thereof, or to assign this Lease, but only in accordance with and subject to the provisions of this Lease or a consent to any Transfer.
25.8Article 13. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall will have the right to collect withhold its consent if, in Landlord's reasonable judgment, the business of the proposed assignee or subtenant would expose the Demised Premises and/or Building to increased risk of danger or injury, including environmental contamination, or increased economic or financial risks.
(a) If Tenant desires to assign this Lease or to sublet all or part of the Demised Premises, it must, prior to entering into such rentassignment or sublease, serve notice upon Landlord of its intention to make such assignment or subletting ("Tenant's Notice") which notice will contain (i) the name, address and financial information of the proposed assignee or subtenant, (ii) the full and complete terms and conditions of the assignment or subletting and, in the case of subletting, the exact space to be sublet, (iii) the amount of rental and all other consideration to be paid by the subtenant or assignee, (iv) the nature of the proposed assignee's or subtenant's business and its proposed use of the Demised Premises, and (v) a copy of plans and, if available, specifications for any required alterations to the Demised Premises. In the event that Landlord or Mortgagee requires any additional or supplementary information, Landlord or Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same within a reasonable time. Within thirty-one (31) days of Landlord's receipt of Tenant's Notice or, within thirty-one (31) days of Landlord's receipt of any additional or supplementary information requested by Landlord, Landlord will advise Tenant as to whether it will (i) consent to such assignment or subletting, (ii) refuse to consent to such assignment or subletting, or (iii) elect to terminate this Lease and the unexpired term hereof (a "Recapture"). In the event Landlord elects to Recapture, Tenant will vacate and surrender the Demised Premises on the date specified by Landlord, but not later than the date set forth in the Tenant Notice upon which the assignment or proposed assignment or sublease was to become effective, which date will not be prior to forty (40) days after receipt by Landlord of Tenant Notice, and upon such vacation and surrender, this Lease will terminate.
Appears in 2 contracts
Samples: Lease Agreement (Windsortech Inc), Lease Agreement (Windsortech Inc)
Assignment or Subletting. 25.1A. Lessee shall not assign the right of occupancy under this Lease or any other interest herein, or sublet the premises, or any portion thereof, without the prior written consent of Lessor, which shall not be unreasonably withheld. Except as hereinafter providedLessee absolutely shall have no right of assignment or subletting if it is in default of this Lease. Should Lessor elect to grant its written consent to any proposed assignment or sublease, Tenant Lessee agrees to pay Lessor an administrative fee in a reasonable amount (but not less than $150.00 no more than $350.00), to process and approve such assignment or sublease and Lessor shall not, either voluntarily prescribe the substance and forma of such assignment or by operation sublease.
B. Notwithstanding any assignment of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have subletting of the right to assign all premises or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentthereof, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Lessee shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer continue to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other the terms, conditions and covenants of this Lease, including, but not limited to, the payment of rent and additional rent. Consent by Lessor to be kept and performed by Tenant. The acceptance of Rent an assignment or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant subletting shall not be deemed operate as a waiver of Lessor’s right to withhold consent as to any of subsequent assignment and subletting. Lessor shall have the provisions of sole option, which shall be exercised by providing Lessee with written notice thereof terminating Lessee’s rights and obligations under this Lease rather than permitting any assignment or subletting by Lessee.
C. Should Lessor permit any assignment or subletting by Lessee and should the monies received by Lessee as a consent result of such assignment or subletting minus an amount reasonably assessed by Lessee for services it provides for any assignee or sublessee and any other costs Lessee incurs pursuant to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets assignment or subletting be greater than the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns amount due to Landlord, as security for Tenant’s obligations Lessor under this Lease, all rent then, at Lessor’s election, the excess shall be payable by Lessee to Lessor, it being the parties’ intention that Lessor, and not Lessee, shall be the party to receive any profit from any assignment or subletting. Any and all of Lessee’s options to lease additional space in the Building to be exercised subsequent to the date if such subletting, assignment or subletting are absolutely waived and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or terminated at Lessor’s sole option.
D. Any breach of this Article 5 by the Lessee will constitute a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations default under the terms of this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.), Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.115.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sellperformed without Landlord's prior written consent: (a) Tenant selling, hypothecatehypothecating, assignassigning, pledgepledging, encumber encumbering or otherwise transfer transferring this Lease, Lease or sublet subletting the Premises or any part hereof (eachb) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a “Transfer”result of shares in Tenant being sold on a public stock exchange), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion . For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.215.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.415.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 15.3.1. Tenant shall remain fully liable under this Lease during Lease, and each Guarantor shall continue to remain fully liable under such Guarantor's Guaranty, including with respect to the unexpired Term;
(b) Term after the Transfer Date. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord agrees that the value of Landlord’s interest under this Lease it shall not be diminished (and shall not be deemed to be) a guarantor or reduced surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee this Lease or sublesseeby Applicable Laws;
(c) 15.3.2. Tenant shall reimburse Landlord for Landlord’s 's actual third-party costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, in an amount not to exceed Five Thousand Dollars ($5,000.00);
(d) 15.3.3. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five be entitled to retain one hundred percent (25100%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash paymentexcess;
(e) 15.3.4. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 15.3.5. Tenant shall not then be effected on Landlord’s formsin default hereunder in any respect;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 15.3.6. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use, unless otherwise approved by Landlord;
(i) 15.3.7. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
15.3.8. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
15.3.9. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
15.3.10. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.27.
25.515.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.715.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.815.6. [Intentionally omitted]Notwithstanding anything to the contrary contained herein, Tenant may, at any time and from time to time, without the consent of Landlord, assign this Lease or any interest hereunder to, or sublease or license the Premises or any part thereof to (each of the following is referred to herein as a “Permitted Transfer”): (a) any successor entity of Tenant resulting from a merger, reorganization, or consolidation with Tenant (provided that such merger, reorganization or consolidation is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (b) any initial public offering by Tenant or any or its affiliates, (c) any entity succeeding to all or substantially all of the business and assets of Tenant (provided that such transaction is undertaken primarily for independent business purposes, and not primarily for purposes of transferring this Lease or any interest in the Premises); (d) any entity that, as of the date of determination, is an Affiliate of Tenant; or (e) any entity that, concurrently with such Transfer, is acquiring all or substantially all of the business being conducted at the Premises by Tenant or its affiliates, provided that (i) Tenant shall notify Landlord in writing at least twenty (20) days prior to the effectiveness of such Permitted Transfer, (ii) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as a Permitted Transfer and shall otherwise comply with the requirements of this Lease regarding such Transfer, (iii) the transferee has a net worth that is equal to or greater than the net worth of the transferring Tenant, and (iv) Tenant and each Guarantor (in accordance with such Guarantor’s Guaranty) shall remain fully liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant.
25.915.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement (Innovative Industrial Properties Inc), Lease Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer or encumber this Lease, nor sublet all or sublet any part of the Premises or any part hereof (each, a “Transfer”), permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consentapproval, which consent Landlord may agrees not unreasonably to withhold; provided. It will not be unreasonable for Landlord to withhold consent if, howeveras reasonably determined by Landlord, the financial responsibility or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business not to be consonant with that Tenant of other tenants in the Building, or if the intended use by the proposed assignee or subtenant conflicts with any commitment made by Landlord to any other tenant in the Building. Tenant’s request for approval shall be in writing and contain the name, address, and description of the business of the proposed assignee or subtenant, its most recent financial statement and other reasonable evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed assignment or subletting. Within ten (10) business days from receipt of such request Landlord shall either: (a) grant or refuse consent. Landlord shall have no recapture right. Each assignee or sublessee of Tenant’s interest hereunder shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for all payments and for the right due performance of all terms, covenants, conditions and provisions herein contained on Tenant’s part to assign be observed and performed. No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute the same shall not release assignee from its liability as set forth herein. Notwithstanding anything to the contrary contained in this Section 25, neither (i) an assignment or subletting of all or any portion of its interest under this Lease or sublet all or any a portion of the Premises without Landlord’s consent to any parent(A) an entity which is controlled by, subsidiary controls or affiliate is or under common control with Tenant or an Affiliate of Tenant; , or any party that results from (B) a merger or consolidation purchaser of Tenant; or any party that acquires all or substantially all of the assets or a majority of stock or membership interests of Tenant, or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant through a purchase, merger, consolidation or reorganization of Tenant by or with another entity (whether such acquisition takes the form of an asset sale, a stock sale or a combination thereof), nor (ii) transfer, by operation of law or otherwise, in connection with the merger, consolidation or other reorganization of Tenant or of an entity which is controlled by, controls or is under common control with Tenant or an Affiliate of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer hereinafter, such entities, purchasers, and parties shall be referred to herein collectively or individually as a an “Subject TransferAffiliate”), nor (iii) an initial public offering of Tenant’s or an Affiliate of Tenant’s capital stock, shall be subject to Landlord’s consent pursuant to this Section; provided, however, no sublease or assignment to an Affiliate shall release the Tenant named herein from any liability under this Lease. For purposes of this Lease, “control” shall mean the ownership of more than fifty-one percent (51%) of the outstanding equity securities of an entity or management control of such entity. Notwithstanding anything to the foregoingcontrary contained in this Section 25 Tenant may, with written notice to Landlord but without Landlord’s consent, sublease, license or allow the use of a portion of the Premises to an entity that is (a) funded by Tenant or an Affiliate in connection with Tenant’s or the Affiliate’s business, or (b) engaged in a business transaction with Tenant or an Affiliate that requires Tenant or the Affiliate to provide office space, provided that the following conditions are all met: (i) such party and its agents, employees, licensees and invitees must either carry the insurance Tenant is required to carry under this Lease or Tenant’s insurance must provide the coverage to such party as though such party were the primary insured under Tenant’s insurance policy; and (ii) no demising wall shall be installed with respect thereto. In no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable liability under this Lease during in the unexpired Term;
(b) Tenant shall provide case of any of the foregoing assignments. Any consent by Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease hereunder shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status constitute a waiver of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt strict future compliance by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to or a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of terms, covenants, provisions, or conditions in this Lease or a consent to any Transfercontained.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Sublease Agreement, Sublease Agreement (Verrica Pharmaceuticals Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee covenants and agrees that it will not sell, Tenant shall notassign, sublease, mortgage, pledge or otherwise transfer or encumber (collectively “transfer”) this Lease or any rights, interests or estates created by this Lease or all or any portion of the Leased Premises, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet (a) without having first obtained the Premises or any part hereof written consent of Lessor (each, a “Transfer”which shall not be unreasonably withheld), and (b) in the case of an assignment, without Landlord’s prior written consentfirst obtaining and presenting to Lessor a covenant of assumption by the assignee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right wherein such assignee expressly agrees to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent and with Lessor to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially assume and be bound by all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred covenants, terms, conditions and provisions hereof to herein the same extent as a “Subject Transfer”)if said assignee had been named as the original Lessee. Notwithstanding the foregoing, Lessee may transfer this Lease or any rights, interests or estates created by this Lease to an affiliate of Lessee under common ownership and control of Lessee without prior written consent of Lessor, but in no such event Lessee shall Tenant be released remain liable for the performance of the Lease and, in the case of an assignment, Lessee shall comply with the requirements of Section 8(b) above. Any such transfer shall not relieve Lessee from any of its obligations under to comply with all the covenants, terms, conditions and provisions of this Lease.
25.2, unless otherwise agreed in writing by Lessor. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Lessor consents to any other Transfertransfer, but such consent shall not more than ninety (90) days in relieve Lessee and/or any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or assignee, sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferetc., all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenantfrom securing Lessor’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to written consent to a Transfer to a transfereeany further transfer, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or nor shall any of Landlord’s affiliates such consent be construed as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees consent to reasonably evaluate any proposed transferee’s, assignee’s further transfer or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy as a waiver of any portion of the Premises.
25.4this section or of Lessor’s rights hereunder. As conditions precedent to LandlordA transfer of control of Lessee’s consent to capital stock or ownership interests, either voluntarily or by operation of law, shall constitute a Subject Transfer, Landlord may require any or all “transfer” of the following:
(a) Tenant shall remain fully liable Lease under this Lease during section. “Transfer of Control” as used in the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence foregoing shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
limitation (i) Landlord shall not be bound an outright sale, assignment or transfer of sufficient shares of Lessee’s capital stock to vest 51% or more of Lessee’s capital stock or ownership interests in persons or entities controlled directly or indirectly by any provision persons or entities, some or all of any agreement pertaining to the Transfer, except for Landlordwhom are different than those persons or entities which directly or indirectly control 51% or more of Lessee’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (capital stock as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the PremisesEffective Date, or (ii) a sale, assignment or other transfer of shares of the capital stock or ownership interest in any corporation, partnership or other entity, which, as of the Effective Date, owns, separately or jointly with others, directly or indirectly, 51% or more of Lessee’s capital stock or ownership interests, where such transfer is sufficient to vest 51% or more of such capital stock or ownership interest in persons or entities, some or all of the items relating to Hazardous Materials of whom are different than those persons or entities owning such proposed transferee, assignee shares or sublessee ownership interest as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferEffective Date.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Ramaco Resources, Inc.), Lease (Ramaco Resources, Inc.)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord, in all instances, shall respond to any request for consent within ten (10) business days. If Landlord may does not unreasonably withhold; providedrespond within such period, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)deemed denied. Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project unless (a) Tenant notifies Landlord of Tenant’s desire to do so and (b) Landlord fails to notify Tenant within ten (10) days after receipt of such notice that Landlord can accommodate such tenant or potential tenant’s space needs in the Building.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire, if applicable, to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status statements of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, such reimbursement not to exceed the lesser of actual costs or two thousand dollars ($2,000);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises and excluding any consideration received for the value of Tenant’s business or personal property) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction all costs and expenses incurred by Tenantin connection with such transfer, including any reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by or allowed Tenant. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be permitted within the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(1) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Sublease Agreement (Natera, Inc.), Sublease Agreement (Natera, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber or otherwise transfer this Leasemortgage, or encumber this lease, nor sublet or permit the Premises or any part hereof (each, a “Transfer”)thereof to be used by others, without Landlord’s the prior written consentconsent of Landlord, which consent shall not be unreasonably withheld, in each instance. In connection with an assignment, sublease or encumbrance Landlord may require the submittal of detailed financial information about the prospective subtenant or assignee, to be reviewed by Landlord, and may require a guarantee of the obligations of the prospective subtenant or assignee, and may require detailed financial information about the guarantor, to be reviewed by Landlord; and there may be alterations to this lease and alterations to the building which are necessary to consummate the transaction. The Landlord may require Tenant or the prospective assignee or sub-tenant to pay for all alterations to the building, and may require that Landlord perform same. Landlord may charge a reasonable fee not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion exceed $500.00 as part of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parentassignment, subsidiary sublease, or affiliate of Tenant; encumbrance. If this lease is assigned, or if the Premises or any party that results part thereof is sublet, or occupied by anyone other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, sub-tenant, or occupant and apply the net amount collected against all rent herein reserved. No such assignment, subletting, occupancy, or collection shall be deemed a merger waiver of this covenant, or consolidation the acceptance of Tenant; the assignee, sub-tenant, or occupant as tenant, or a release of Tenant from further performance by Tenant of the covenants in this lease. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant (or any party that acquires all subsequent tenant) from obtaining the consent in writing of Landlord to any further assignment or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2subletting. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord consents to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character sublease or sublease of the proposed transfereePremises or to an assignment of this Lease, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transfereeamount of rental payable under said sublease or assignment, assignee or sublessee; on a per square foot basis, exceed the Base Rent and Additional Rent payable under this Lease, on a per square foot basis, the consideration and all other material terms and conditions of the proposed Transferexcess rental (that is, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees sublease rental which, on a per square foot basis, exceeds the Base Rent and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to Additional Rent on a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable square foot basis payable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includeLease, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual after first deducting all costs and expensesexpenses that Tenant incurs in connection with such sublease, including, without limitation, reasonable attorneys’ brokerage fees, charges legal fees and disbursements incurred in connection expenses and alteration costs), shall be divided equally between Tenant and Landlord, with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding TenantLandlord’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due share thereof being paid over to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise as Additional Rent due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement (Monotype Imaging Holdings Inc.), Lease Agreement (Monotype Imaging Holdings Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably delay, condition or withhold; provided. Notwithstanding the foregoing, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of Transfer the Premises Premises, upon twenty (20) days prior written notice to Landlord but without obtaining Landlord’s consent prior written consent, to any parenta corporation or other entity which is a successor-in-interest to Tenant, subsidiary by way of merger, consolidation or affiliate corporate reorganization, or by the purchase of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interests of Tenant provided that (an a) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring this Lease, and (b) the net worth (as determined in accordance with generally accepted accounting principles (“Allowable TransferGAAP”). Any Transfer other ) of the assignee is not less than an Allowable Transfer the net worth (as determined in accordance with GAAP) of Tenant as of the date of Tenant’s then most current quarterly or annual financial statements, and (c) such assignee shall be referred agree in writing to herein as a assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment (collectively, the “Subject TransferPermitted Assignees”). Notwithstanding the foregoing, Tenant shall have the right to sublet any portion of the Premises, upon twenty (20) days prior written notice to Landlord, but without obtaining Landlord’s prior written consent, to a Permitted Subtenant subject to the conditions precedent in no event shall Tenant be released from any of its obligations under this LeaseSection 25.9.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character character, relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requirerequire (the “Transfer Information”). Tenant shall also reimburse Landlord for all Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees fees, charges and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s connection with the review, processing and documentation of such request for such Transfer.in an amount not to exceed Five Thousand Dollars ($5,000);
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, transferee or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises to the extent any such change in use is not a Permitted Use. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, transferee or assignee or sublessee of poor reputation, lacking financial qualifications, qualifications (commensurate with the obligations proposed to be undertaken in connection with such a Transfer) or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the “Revenue Code”)); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. The immediately preceding sentence shall not apply if ownership of the Property is transferred or conveyed to a person or entity other than a real estate investment trust or affiliate thereof.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublesseeTransfer Information;
(c) Tenant shall reimburse Landlord for Landlord’s actual and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements other costs or overhead expenses incurred by Landlord in connection with the review, processing and documentation of such requestrequest in an amount not to exceed Five Thousand Dollars ($5,000);
(d) If a Transfer Subject to Section 25.8, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The With respect to any Transfer of all or any portion of the Premises, the proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such consent to Transfer (if such Transfer consent is required hereunder) shall be effected on Landlord’s forms, subject to changes by Tenant that are satisfactory to Landlord in its reasonable discretion;
(g) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Useviolate Section 2.7;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (if such consent is required hereunder) (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 38.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use use, store, handle, treat, generate in or store release or dispose of from the Premises, together with copies of all documents relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises. Additionally, Tenant including, without limitation: permits; approvals; reports and correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Premises (provided, such installation of tanks shall deliver only be permitted after Landlord has given its written consent to Landlorddo so, which consent may not be unreasonably withheld); and all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or before under the date Premises for the closure of any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such tanks. Neither Tenant nor any such proposed transferee, assignee or sublessee as described is required, however, to provide Landlord with any portion(s) of such documents containing information of a proprietary nature which, in Section 39.2and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and constitute a “Default” hereunder after the lapse of any applicable notice and cure period set forth in Section 24.4(i).
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, transferee or assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, transferee or assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to license (but not sublease) up to an aggregate of up to ten percent (10%) of the rentable square feet of the Premises to individuals or entities (each, a “Business Affiliate”), which license to a Business Affiliate shall be on and subject to all of the following conditions: (a) Tenant shall have a direct contractual business relationship (relating to a primary business of Tenant conducted in the Premises and other than Business Affiliate’s use of the Premises) with each such Business Affiliate and any such Business Affiliate’s use of the Premises shall be directly and primarily related to such business relationships; (b) each such Business Affiliate shall be of a character and reputation consistent with the quality of the Building; (c) each such license shall clearly specify that it is only a contract right and that the Business Affiliate is not a subtenant and has no interest in real property; (d) each such Business Affiliate’s use of the Premises is in a manner consistent with the Permitted Use; (e) no demising walls or separate entrances shall be constructed in the Premises to accommodate any such license; (f) the term of such license shall not exceed six (6) months unless otherwise agreed to in writing by Landlord; (g) the primary motivation for Tenant’s grant of such license is not to provide space to such Business Affiliate; and (h) such Business Affiliate shall pay no rent to Tenant in respect of such license. No such license shall relieve Tenant from any liability under this Lease.
25.9. Notwithstanding any contrary provision of this Article 25, the original Tenant named hereunder (but not any assignee or subtenant other than Permitted Assignees) shall have the right, without the receipt of Landlord’s consent, but on prior written notice to Landlord, to sublet up to an aggregate of up to thirty-five percent (35%) of the rentable square feet of the Premises to individuals or entities (each, a “Permitted Subtenant”) on and subject to all of the following conditions: (a) the net worth (as determined in accordance with generally accepted accounting principles (“GAAP”) of such Permitted Subtenant is not less than Five Million Dollars ($5,000,000); (b) each such Permitted Subtenant shall be of a character and reputation consistent with the quality of the Building; (c) each such Permitted Subtenant’s use of the Premises is in a manner consistent with the Permitted Use; (d) the term of such sublease shall not exceed four (4) years unless otherwise agreed to in writing by Landlord; and (e) all rent and other compensation paid to Tenant by such Permitted Subtenant shall be subject to Section 25.4(d). No such sublease shall relieve Tenant from any liability under this Lease.
25.10. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, or if a Default occurs and is cured to the satisfaction of Landlord, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Arena Pharmaceuticals Inc), Lease (Arena Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding Ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee or subtenant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than Thirty (30) days prior to the effective date of the proposed assignment or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of $125.00 or One Percent (1%) of the annual current value of this Lease, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than Ten Percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default under the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than Ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Option to Lease (Coastal BHC Inc), Option for Lease (Florida Coastline Community Group Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parentperson that as of the date of determination and at all times thereafter directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant, to any entity resulting from the merger, consolidation, acquisition or restructuring of Tenant; , or any party that results from a merger or consolidation to the purchaser in connection with the sale of Tenant; or any party that acquires all or substantially all of the assets or stock used in connection with the business operated by Tenant at the Building (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer equity interests of another person and (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Sections 25.2 and 25.8 of the Lease shall not be referred applicable to herein as a “Subject any Exempt Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises is not an Exempt Transfer and provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to Transfer this Lease to a proposed transferee, assignee or sublessee other than an Exempt Transfer, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 25.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Receptos, Inc.), Lease (Receptos, Inc.)
Assignment or Subletting. 25.128.1. Except as hereinafter providedto the extent, Tenant shall notif any, expressly permitted by this Article, none of the following (each, a “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)performed, without Landlord’s prior written consentconsent which may be granted or withheld in Landlord’s sole and absolute discretion: (a) Tenant selling, which consent Landlord may not unreasonably withhold; providedhypothecating, howeverassigning, that Tenant shall have pledging, encumbering or otherwise transferring this Lease or subletting the right to assign all Premises or any portion thereof or (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of its interest under this Lease or sublet all or any portion shares in Tenant being sold on a public stock exchange). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary “control” means (a) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than fifty percent (50%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”)b) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Property or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Property or a property owned by Landlord or an affiliate of Landlord.
25.228.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character and business experience of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 39 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; any intended change in the use or operation of the Premises; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. In addition, upon request from Landlord, Tenant shall reimburse provide such additional information regarding the Transfer and the proposed transferee as Landlord for all reasonable attorneys’ fees and may require.
28.3. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that the rental or other reasonable out-of-pocket costs incurred amounts to be paid by Landlord the occupant, assignee, manager or other transferee thereunder would be based, in reviewing whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to any other occupant of the Property, any assignee of Tenant’s request interest in this lease, any manager for such Transfer.
25.3. Landlordthe Property, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength or any other transferee of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change interest in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event this lease; (y) Tenant shall Landlord be deemed to be unreasonable for declining to consent to not consummate a Transfer to a transfereewith any person in which Landlord owns an interest, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the status Internal Revenue Code of Landlord or any of Landlord’s affiliates 1986 (as a Real Estate Investment Trust under the same may be amended from time to time, the “Revenue Code”); provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.428.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(db) If a Tenant’s Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ec) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fd) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(ge) There Tenant shall exist no uncured Default or Imminent not then be in Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hf) Such proposed transferee, assignee or sublessee’s use of the Premises and the Property shall be such as to comply with each of the terms and conditions of this Lease, including, but not require any change to limited to, the Permitted UseUse and the provisions limiting Transfers;
(ig) Landlord shall not be bound by any provision of any agreement between the Tenant and the transferee pertaining to the Transfer, except for Landlord’s written consent to the same;
(jh) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(i) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kj) A Tenant shall deliver to Landlord a list of any Hazardous Materials (as defined in Section 39.7 below)Materials, certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.528.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.628.6. The consent by Landlord to (or the waiver of its rights as to) a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.728.7. Notwithstanding any Transfer, Tenant and any Guarantor shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunderhereunder and under any Guaranty, and for the full performance of all other terms, conditions and covenants to be kept and performed by TenantTenant and/or the Guarantor. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws.
25.828.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease solely as to the portion of the Premises subject to the Transfer, as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.928.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Graybug Vision, Inc.), Lease (Graybug Vision, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall not, either voluntarily not assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or any interest in it and shall not sublet the Premises or any part hereof of it or any right or privilege appurtenant to this Lease or permit any other person (eachthe agents and employees of Tenant excepted) to occupy or use the Premises or any portion of it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may in lieu of granting consent terminate this Lease. A consent to one assignment, subletting, or occupation and use by another person shall not be deemed to be a “Transfer”)consent to any other or further assignment, subletting, or occupation nor a waiver of the provisions of this Section, except as to the specific instance covered by it. Any such assignment, subletting, or occupation without consent shall be void and shall at the option of Landlord terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord.
B. In the event Tenant contemplates an action under Section 26, Paragraph A, Tenant shall give Landlord 30 days’ written notice of Tenant’s intention to sublease or assign this Lease. Such notice shall constitute an offer by Tenant to Landlord to terminate this Lease and the future rights and obligations of the parties under this Lease. Landlord may accept the offer by giving written notice of acceptance to Tenant within 10 days of Landlord’s receipt of Tenant’s notice of intention to sublet or assign. Upon such acceptance, this Lease shall terminate as of the end of the calendar month in which the notice of acceptance is given to Tenant. Tenant shall then surrender the Premises to Landlord and the provisions of this Lease applicable to termination upon expiration of the Term shall apply. Such termination shall not relieve either party from liability for any breach or default occurring prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that to termination.
C. Tenant shall have the right in the event of a merger, consolidation, reorganization, or recapitalization, whether or not Tenant survives as the surviving corporation, to assign all or any portion of its interest under transfer this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2such surviving corporation. In the event Tenant desires to effect a Transfercontemplates making an assignment or transfer as provided in this Section 26, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)Paragraph C, Tenant shall provide written give 30 days’ notice to Landlord (of its intent to make the “Assignment Notice”) containing assignment or transfer and shall furnish to Landlord all pertinent information (including references) concerning as to the character book value of the proposed transfereeassignee. Upon assignment or transfer, as provided in this section, the liability of Tenant shall terminate and Landlord shall look to the assignee or sublessee; for performance under this Lease, provided the Assignment Date; any ownership or commercial relationship between Tenant and assignee agrees in writing to be bound by the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail this Lease as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transferthough an original signatory.
25.3. LandlordD. Except as otherwise expressly provided in this Lease, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease or a consent to any Transferunless Landlord consents.
25.8. [Intentionally omitted]
25.9. If E. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease. Landlord, and appoints Landlord as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
F. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing or prospective Tenant of the Building.
G. Tenant agrees to pay to Landlord the sum of $500 to reimburse Landlord for all expenses, including attorney fees, incurred by Landlord in connection with any requested and reasonably permitted assignment or subleasing. Such sum shall be in addition to any other attorney fees and costs allowed under this Lease.
Appears in 2 contracts
Samples: Lease (Aratana Therapeutics, Inc.), Lease (Aratana Therapeutics, Inc.)
Assignment or Subletting. 25.1Tenant agrees not to assign or in any manner transfer this Lease or any estate or interest therein without the prior written consent of the Landlord, and not to sublet said premises or any part or parts thereof or allow anyone to come in with, through or under it without the like consent of Landlord. Except as hereinafter providedConsent by Landlord to one or more assignments of this Lease or to one or more subletting of said leased premises shall not be deemed to be a waiver of the requirement to obtain Landlord's consent to any future subletting or assignment. Landlord's consent to a proposed assignment or subletting shall not be unreasonably withheld, but Landlord may reasonably refuse to approve a proposed assignment or sublease if the proposed Tenant's business usage is not compatible, in the sole judgement of Landlord, with the business activities of other retail tenants in the South State Street retail area within which the Building Complex is located, or if the proposed Tenant shall is not, either voluntarily in the sole judgment of Landlord, financially able to comply with the provisions of this Lease. It is specifically agreed by Landlord that Tenant may assign this Lease to another tenant who will be using the Building for a use other than that permitted under paragraph 5(a), and the Landlord may not withhold its consent to a proposed sublease or assignment to a tenant whose usage of the Building would not otherwise be permitted under paragraph 5(a) as long as such sublease or assignment meets the other requirements set forth in this paragraph. Any sublease or assignment shall contain an express agreement of the sublessee or assignee to be bound by operation all the terms and conditions of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet specifically including the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)restrictive provisions contained in paragraph 5(b) hereof. Any Transfer other than an Allowable Transfer assignment or subletting in violation of this section shall be referred deemed to herein as be a “Subject Transfer”). Notwithstanding default under the foregoing, in no event shall Tenant be released from any terms of its obligations under this Lease.
25.2. In the event that Tenant desires to effect assign this Lease or sublease all or a Transferportion of the Building Complex, thenTenant shall provide Landlord with an executed copy of the proposed sublease or assignment, at least twenty (20) days with respect showing all of the terms and conditions of said sublease or assignment. Landlord may condition its consent to a proposed assignment or sublease and at least upon an adjustment in the rental provisions of paragraph 2 in the event that, in the reasonable opinion of Landlord, the Percentage Rent under paragraph 2(b) would, or could be materially affected as a result of such assignment or sublease. Landlord may also condition its consent to an assignment of this Lease or a sublease of all or a portion of the Building Complex upon an adjustment in the rental provisions of paragraph 2 in the event that the base rent to be paid by the proposed assignee or subtenant exceeds the per square foot minimum rent payable under paragraph 2(a), it being the intent that any excess rent (determined on a per square footage basis) which the Tenant would receive as a result of the assignment or sublease shall be paid to Landlord. In the event that the Tenant desires to assign this Lease or sublease the entire Building, the Landlord may, within thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to from the date when Tenant desires that the Transfer proposed sublease or assignment is presented to be effective (the “Assignment Date”)Landlord for its approval, Tenant shall provide elect, by written notice to Landlord (Tenant, to terminate this Lease as of the “Assignment Notice”) containing information (including references) concerning the character effective date of the proposed transfereesublease or assignment, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlordevent, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant neither party shall have the right to collect such rent.any
Appears in 2 contracts
Samples: Lease (Nebraska Book Co), Lease Agreement (NBC Acquisition Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant a) The LESSEE shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateneither transfer, assign, pledge, encumber nor sublet this LEASE or otherwise transfer this Leaseany interest in it, or sublet any property on the Premises LEASED PROPERTY, or grant any interest, privilege, or license whatsoever in connection with this LEASE without the prior written consent of GOVERNMENT. Consent shall not be unreasonably withheld or delayed.
b) Any SUBLEASE granted by LESSEE shall contain a copy of this LEASE as an attachment and be consistent with the terms and conditions of this LEASE and shall terminate immediately upon the expiration or any part hereof (each, a “Transfer”)earlier termination of this LEASE, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have any liability on the right part of GOVERNMENT to assign all LESSEE or any portion SUBLESSEE, except as specifically stated in this LEASE. No SUBLEASE shall relieve LESSEE of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2LEASE. In Under any SUBLEASE made with or without consent of GOVERNMENT, the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant SUBLESSEE shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or have assumed all of the following:
(a) Tenant shall remain fully liable obligations of LESSEE under this Lease during LEASE. Every SUBLEASE shall be subject to, and shall be deemed to contain, the unexpired Term;Environmental Provisions set forth in Clause 35 below.
(bc) Tenant LESSEE shall provide Landlord with evidence reasonably satisfactory submit to Landlord that GOVERNMENT for its prior written consent, a copy of each SUBLEASE the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject TransferLESSEE proposes to execute. Such evidence shall include, without limitation, evidence respecting consent may include a requirement that LESSEE renegotiate the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due SUBLEASE to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess conform to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6LEASE. The consent by Landlord Consent to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant SUBLEASE shall not be deemed a waiver of taken or construed to diminish or enlarge any of the rights or obligations of either of the parties of this LEASE. Should a conflict arise between the provisions of this Lease or LEASE and a consent provision of the SUBLEASE, the provisions of this LEASE shall take precedence. Upon its execution, a copy of each SUBLEASE shall be immediately furnished to any Transferthe GOVERNMENT.
25.8d) All requests for SUBLEASEs will require review by the appropriate government agencies. [Intentionally omitted]
25.9Any costs associated with the modification of the LEASE, including but not limited to studies and environmental reviews, will be at no cost to the GOVERNMENT. Requests for a SUBLEASE shall include payment of a Real Estate Processing Fee at the discretion of the GOVERMENT. If Tenant sublets the Premises or any potion thereofrequest for a SUBLEASE is denied, Tenant hereby immediately and irrevocably assigns to Landlordthe Real Estate Processing Fee will be returned, without interest, as security soon as practicable.
e) SUBLEASES may be authorized only by a written modification to the LEASE. Request for Tenant’s obligations under this Lease, all rent from any such subletting, modification will include a copy of the draft SUBLEASE or contract between the LESSEE and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentproposed SUBLESSEE.
Appears in 2 contracts
Samples: Lease for Agricultural Purposes, Lease for Agricultural Purposes
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant 11.1 Lessee shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not assign this Lease, or any interest herein, or sublet or allow any other person, firm, or corporation to use or occupy the Premises Premises, or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Lessor, which consent Landlord may will not be unreasonably withhold; providedwithheld or delayed. If Lessor does not respond in writing to Lessee's request for consent within ten (10) business days of receipt of Lessee's request therefor, however, that Tenant Lessor shall be deemed to have given consent. Lessor shall have the right to assign make such investigations as it deems reasonable and necessary in determining the acceptability of the proposed assignee or subtenant. Such investigations may include inquiries into the financial background, business history, capability of the proposed assignee or subtenant in its line of business, and the quality of its operations. Under no circumstances shall Lessor be obligated to consent to the assignment of this Lease or the subletting of the Premises to any entity whose operations violate the restrictive covenants described in Section 26 hereof. Lessee shall provide to Lessor such information as Lessor may reasonably require to enable it to determine the acceptability of the proposed assignee or subtenant, including information concerning all of the foregoing matters, and Lessor shall have no obligation to consent to any assignment or subletting unless it has received from Lessee (at no cost or expense to Lessor) the most recent audited financial statements of the proposed assignee or subtenant and such other information as Lessor reasonably requires. For purposes of this Section 11, an assignment of stock or other ownership interest in Lessee shall be deemed an assignment within the meaning of and be governed by this Paragraph. No assignment or subletting (with or without the consent of Lessor) shall release Lessee from its obligations under this Lease nor shall Lessee permit this Lease or any portion interest herein or in the tenancy hereby created to become vested in or owned by any other person, firm, or corporation by operation of law or otherwise. The power of Lessor to give or withhold its interest under consent to any assignment or subletting shall not be exhausted by the exercise thereof on one or more occasions, but shall be a continuing right and power with respect to any type of transfer, assignment or subletting.
11.2 If Lessee shall assign this Lease or sublet all the Premises in any way not authorized by the terms hereof, the acceptance by Lessor of any Amount Due from any person claiming as assignee, sublease, or otherwise shall not be construed as a recognition of or consent to the assignment or subletting or as a waiver of the right of Lessor thereafter to collect any rent from Lessee, it being agreed that Lessor may at any time accept any Amount Due under this Lease from any person offering to pay it without thereby acknowledging the person so paying as a lessee in place of Lessee herein named, and without releasing Lessee from the obligations of this Lease, and without recognizing the claims under which such person offers to pay any Amount Due, but it shall be taken to be a payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this Lease, Lessee shall have the right, without the prior consent of Lessor but subject to Lessor's rights to notice and prohibitions contained herein, to assign this Lease or sublet the whole or any portion part of the Premises without Landlord’s consent to any parent, subsidiary a corporation or affiliate of Tenantentity which: (1) is Lessee's parent corporation; or any party that results from (2) is a merger wholly-owned subsidiary of Lessee or consolidation of TenantLessee's parent corporation; or any party that acquires all (3) is a corporation of which Lessee or Lessee's parent corporation owns in excess fifty percent (50%) of the outstanding capital stock; or (4) is a result of consolidation or merger with Lessee and/or Lessee's parent corporation; or (5) is a corporation to which substantially all of the Lessee's assets or stock of Tenant (an “Allowable Transfer”)have been transferred. Any Transfer other than an Allowable Transfer transfer pursuant to 1, 2, 3, 4 or 5 above, shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior subject to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingfollowing conditions:
(a) Tenant Lessee shall remain fully liable under this Lease during the unexpired Term;
term of this Lease; and (b) Tenant any such assignment, sublease or transfer shall provide Landlord with evidence reasonably satisfactory be subject to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status all of the proposed transfereeterms, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs covenants and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation conditions of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and such assignee, sublessee or transferee shall expressly assume the obligations of Lessee under this Lease by a document reasonably satisfactory to Lessor. Lessee shall have the obligation to give Lessor prior written notice of its intent of any such arrangement, and if Lessor reasonably determines that the proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that is engaged in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of a business which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use would materially interfere with the operation of the Premises shall not require Property or that permitting the assignment or subletting would cause a violation by Lessor of its obligations under any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy lease covering a portion of the Premisesproperty, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Lessor shall have the right to collect prohibit such rentarrangement based upon the issue of the business of the proposed assignee or sublessee or the compatability of the proposed assignee or sublessee with the businesses in the Building.
Appears in 2 contracts
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily without the prior written consent of Landlord and Prime Landlord (Landlord’s consent not to be unreasonably withheld),
(i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Tenant’s request for Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease shall be in writing and no proposed assignment or sublease by Tenant may be for less than the entire Premises. In the event that Tenant requests Landlord’s and Prime Landlord’s consent to a proposed assignment or sublease, Landlord may instead elect to terminate this Sublease by written notice to Tenant within thirty (30) days following Tenant's written request for Landlord's and Prime Landlord’s consent to any parentproposed assignment or sublease. If Landlord and Prime Landlord shall consent in writing to a proposed assignment or sublease and Tenant shall assign this Sublease or sublet the Premises, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Landlord shall be referred entitled to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice pay to Landlord Landlord, as Additional Rent, one hundred percent (100%) of all sums and other consideration paid to Tenant by the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; subtenant for or by reason of such assignment or sublease less the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable actual out-of-pocket costs expenses reasonably incurred by Landlord Tenant in reviewing Tenant’s request connection with such assignment or sublease on account of brokerage commissions, advertising expenses, legal fees, work contributions, the cost of work performed by Tenant to prepare the Premises for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublesseesubtenant’s financial qualifications occupancy, and (b) Landlord may only consider all other costs and expenses incurred by Tenant in effecting such financial qualifications in assignment or sublease. Such Additional Rent shall be payable as and when received by Tenant from the event that, were the transfer, assignee or subtenant. No permitted assignment or sublease to occur, Tenant would no longer occupy will in any portion way affect or reduce any of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all obligations of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSublease.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Assignment or Subletting. 25.1. Except as hereinafter providedThe Tenant will not assign, Tenant shall nottransfer, either voluntarily sublet, part with or share possession or set over or permit the Premises to be occupied or used by a licensee or concessionaire or otherwise by any act or deed permit the Premises or any part of them to be assigned, transferred, set over or sublet, whether by operation of Applicable Lawslaw or otherwise, directly (individually and collectively, a “Transfer”) unto any persons, firm, partnership or indirectly sellcorporation whomsoever except with prior consent of the Landlord, hypothecateas set out herein. Notwithstanding the foregoing, assign, pledge, encumber the Tenant shall not assign or otherwise transfer sublet all or part of the Premises to any other tenant in the Building. If the Tenant desires to assign this Lease, Lease or sublet the Premises or any part hereof portion thereof to a named third party (each, a the “TransferTransferee”), without the Tenant shall first provide the Landlord with any information the Landlord may reasonably require, including a true copy of the agreement to assign or sublet (the “Transfer Agreement”); evidence as to the responsibility, reputation, financial standing and business of the proposed transferee; a completed credit check application in the Landlord’s prior written consentform; and if any Leasehold Improvements are contemplated to be undertaken, which consent Landlord may then plans and specifications, including but not unreasonably withhold; providedlimited to, howevermechanical, that Tenant shall have electrical and structural drawings, (collectively the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable TransferTransfer Information”). Any Transfer other than an Allowable Transfer The Tenant shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and give at least thirty (30) days with respect days’ prior written notice to the Landlord of the proposed Transfer and the effective date thereof. Any request for a Transfer may be documented by the Landlord or, at the Landlord’s option, by its solicitors, and the Landlord’s then current standard fee (the “Documentation Fee”), any other Transferlegal costs and any third party costs including, but not more than ninety limited to, architects or consultants fees, (90) days in any eventcollectively, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeTransfer Fee”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord with respect thereto shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced payable by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlorddemand.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease of Office Space (Zymeworks Inc.), Lease of Office Space (Zymeworks Inc.)
Assignment or Subletting. 25.1Tenant may sublet the Premises in whole or in part without Landlord's consent, but the making of any sublease shall not release Tenant from, or otherwise affect in any manner, any of Tenant's obligations under this Lease. Except as hereinafter provided, Tenant shall not, either voluntarily not assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet any interest in this Lease, without the prior, express, and written consent of Landlord, and a consent to an assignment shall not be deemed to be a consent to any subsequent assignment. Landlord's approval of an assignment of this Lease shall not operate to relieve Tenant of its obligations under this Lease. For purposes of this Section 10, by way of example and not limitation, Landlord shall be deemed to have reasonably withheld consent if Landlord determines (i) that the prospective assignee is not of a financial strength similar to Tenant as of the date of the Lease, (ii) that the prospective assignee has a poor business reputation, or (iii) that the proposed use of the Premises or any part hereof by such prospective assignee (eachincluding, without limitation, a “Transfer”)use involving the use or handling of Hazardous Substances) will negatively affect the value or marketability of the Premises. Notwithstanding the foregoing provisions, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease without the consent of Landlord, provided that no default by Tenant then exists with respect to Tenant's obligations hereunder, Tenant has paid all rentals and other payments or sublet all charges due to the date thereof and the use or any portion proposed use of the Leased Premises without Landlord’s consent is in full compliance with the terms and provisions hereof, to (a) any corporation that is a parent, subsidiary or affiliate of Tenant; (b) a person, corporation or any party that results from a merger or consolidation of Tenant; or any party that acquires all or other entity to which substantially all of Tenant's assets are transferred; or (c) a person, corporation or other entity to which fifty percent (50%) or more of the assets or capital stock of Tenant is transferred. Within fifteen (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; effective date of any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursublease, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord a copy of the assignment or sublease which shall specifically provide that the value assignee has assumed the obligations and liabilities of Landlord’s interest Tenant under the Lease and that Tenant shall remain liable under the Lease for payment of all amounts due under this Lease shall not be diminished or reduced if unpaid by the proposed Subject Transferassignee. Such evidence shall include, without limitation, evidence respecting In the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation event of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; providedor assigns, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall will not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing amendment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy modification of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Lease made without Landlord's consent.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Commercial Lease, Commercial Lease (Palmetto Bancshares Inc)
Assignment or Subletting. 25.124.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withholdwithhold or delay; providedprovided that, howeverwithout the consent of Landlord, that Tenant shall have the right to may assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets of or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, equity in no event shall Tenant be released from any of its obligations under this LeaseTenant.
25.224.2. In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer; provided that such costs and expenses shall not exceed $2,000.00.
25.324.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a material change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.424.4. As conditions precedent to Landlord’s consent Tenant subleasing or transferring any rights to a Subject Transferthe Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;; provided that such costs and expenses shall not exceed $2,000.00.
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. .. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in material default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for without Landlord’s written consent agreement to the same;
(ji) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kj) A list of Hazardous Materials (as defined in Section 39.7 38.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.238.2.
25.524.5. Any Transfer that is not in compliance with the provisions of this Section 25 24 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.624.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this LeaseLease unless otherwise agreed in writing by Landlord.
25.724.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant, unless otherwise agreed in writing by Landlord. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.824.8. [Intentionally omitted]If Tenant delivers to Landlord an Assignment Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 24.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Assignment Notice, to terminate this Lease as of the date specified in the Assignment Notice as the Assignment Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Assignment Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Assignment Notice as provided in this Section 24.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.924.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Array Biopharma Inc), Lease (Array Biopharma Inc)
Assignment or Subletting. 25.1. 28.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “"Transfer”"), without Landlord’s 's prior written consent. Notwithstanding the foregoing, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all Transfer, upon ten (10) days prior written notice to Landlord but without obtaining Landlord's prior written consent, (a) to a corporation or any portion other entity which is a successor in interest to Tenant by way of its interest under this Lease merger, consolidation or sublet all corporate reorganization, or any portion (b) by the purchase of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the controlling ownership interest of Tenant provided that such merger or consolidation or such acquisition or assumption, as the case may be, is not principally for the purpose of transferring this Lease, (c) to any person that as of the date of determination controls, is controlled by or is under common control with Tenant ("Tenant's Affiliate") or (d) to any persons in connection with any secondary offering of the Tenant's stock or in connection with any bona fide financing or capitalization for the benefit of Tenant, and otherwise comply with the requirements of this Lease regarding such Transfer (the foregoing described Transfers, or any one of them, may be referred to as an “Allowable "Exempt Transfer”"); provided, however, that (i) the overall net worth of the resulting tenant is not materially less than the overall net worth of Tenant as of the date of this Lease; (ii) Landlord receives satisfactory evidence of the satisfaction of such net worth requirements set forth in the preceding subsections (i) not less than five (5) business days prior to the date of such Exempt Transfer. Any For purposes of Exempt Transfers, "control" requires both (A) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person (unless such Transfers relate to any corporation whose shares are publicly traded) and (B) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. In no event shall Tenant perform a Transfer other than to or with an Allowable entity that is a tenant at the Project or that is in discussions or negotiations with Landlord where Landlord, in each such case, has space available in the Project for such proposed transferee to lease to such transferee. The assignee of Tenant’s entire interest hereunder in accordance with an Exempt Transfer shall may be referred to herein as a an “Subject TransferAffiliate Assignee.”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 28.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment "Transfer Date”), ") Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information reasonably requested by Landlord (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. 28.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s 's performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord's desire to exercise its rights under Section 28.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the "Revenue Code; provided "). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. 28.4 As conditions precedent to Landlord’s consent Tenant subleasing the Premises or to Landlord considering a Subject Transferrequest by Tenant to Tenant's transfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s 's actual out of pocket costs and expenses, including, without limitation, including reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(dc) If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever on account of the leasehold interest being transferred (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant; provided, however, Landlord shall not have any right to any sums or other economic consideration resulting from an Exempt Transfer. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(ed) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fe) Any Landlord's consent to any such Transfer shall be effected on Landlord’s 's reasonable forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(hf) Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be substantially the same as the Permitted Use;
(ig) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
(h) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable by any Governmental Authority for any Transfer;
(i) Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent to any later Transfer;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.220.2.
25.5. 28.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 28.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s 's consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 28.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, : from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.828.8 If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee for the remainder of the Term of this Lease other than any Exempt Transfer or as provided within Section 28.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. [Intentionally omitted]If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.9. 28.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease (Mabvax Therapeutics Holdings, Inc.), Lease (Mabvax Therapeutics Holdings, Inc.)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease to an entity into which Tenant is merged, with which Tenant is consolidated, or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity’s net worth and liquid assets are equal or stock greater than Tenant’s immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Landlord’s consent shall not be required if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor’s net worth and liquid assets are equal to or greater than Tenant’s immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and (ii) any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, and (iii) whether the proposed assignee or sublessee represents a potential risk of compromise of trade secrets of another tenant of the Project. If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.4, Landlord shall be deemed to have approved the request. As a condition to any assignment Or sublease to which Landlord has given consent, any such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the assignee or sublessee agrees to be bound by all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described covenants and agreements in Section 39.2this Lease.
25.5. 25.5 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, 25.7 If Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets sublet the Premises or any potion part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent. Furthermore, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, any security deposit received from the subtenant, which Landlord shall hold pursuant to the terms of the sublease. The security deposit shall be transferable by Landlord to a successor Landlord and to Landlord’s mortgage lender which is the beneficiary of a deed of trust encumbering the Premises, provided such lender agrees to hold the security deposit pursuant to the terms of the sublease and this Lease.
25.8 Notwithstanding any subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any sublessee of the entirety of the Premises with a recognition and nondisturbance agreement in the form described in Article 35 on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease. Any assignment of the Lease or sublease of the Premises shall provide that the assignee or sublessee shall provide financial statements to Landlord as reasonably required by present and prospective lenders and purchasers of the Project.
25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commissions and legal expenses occasioned by such transfer and payable to third parties.
25.11 Notwithstanding any of the foregoing provisions to the contrary, in the event Tenant desires to assign this Sublease or sublet the entire Premises to a transferee other than to a transferee describe in Section 25.2, Landlord may elect to terminate this Lease by written notice given by Landlord to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3.
Appears in 2 contracts
Samples: Lease (Genelux Corp), Lease (Genelux Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)a) The Lessor may, without Landlord’s prior written consentconsent of the Lessee, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of its rights and obligations hereunder in connection with (i) a sale by the Premises without Landlord’s consent to any parent, subsidiary or affiliate Lessor of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets Leased Premises or the Site or (ii) the transfer of all or substantially all of the Leased Premises or the Site through a sale or transfer of stock or assets, a merger or reverse merger, or other operation of Tenant law (whether through one or a series of related transactions, and including any such transaction in which the Lessor retains a direct or indirect ownership interest).
(b) The Lessee shall not assign or sublet this Lease or any of its rights and obligations under this Lease without the prior written consent of the Lessor, such consent not to be unreasonably withheld or delayed, taking into consideration (i) the financial capacity of the assignee to satisfy any financial obligations and / or liabilities which may arise pursuant to this Lease and (ii) the ability of the assignee to safely operate chemical plants in an “Allowable Transfer”)integrated chemical manufacturing complex in accordance with Good Industry Practice, and provided that such assignment or sublease is in connection with a sale, conveyance, disposition, divestiture, contribution to a joint venture or a similar transaction, including by merger, consolidation, reorganization, or other business combination by the Lessee of all or substantially all of the Leased Premises and Lessee’s Improvements. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding In connection with the foregoing:
(A) The Lessor may, acting reasonably, condition its consent on an amendment to the terms of this Lease to reflect reasonable increases in no event the costs incurred by the Lessor in taking the measures reasonably required to adequately protect its competitive information from disclosure where any assignee is a Direct Competitor;
(B) the Lessee shall Tenant reimburse the Lessor for any licenses or Third Party consents required in connection with such assignment and
(C) such assignee shall execute an express assumption of all of the Lessee’s obligations under this Lease through the execution of an assignment and assumption agreement, and only upon such assumption, the assignor Lessee shall be released from any of its all obligations and liabilities under this Lease.
25.2. In (c) Notwithstanding the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferforegoing, but not more than ninety (90subject to Section 12.1(b)(ii) days in any eventhereof, prior the Lessee shall be permitted to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assign or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or sublease this Lease and/or any of Landlord’s affiliates as a Real Estate Investment Trust its rights and obligations under the Code; provided this Lease to an Affiliate in connection with an internal restructuring, provided, that (a) Landlord agrees to reasonably evaluate in connection with any proposed transferee’ssuch assignment of this Lease, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion Affiliate shall execute an express assumption of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable Lessee’s obligations under this Lease during through the unexpired Term;execution of an assignment and assumption agreement, provided, however, such assignor Lessee shall in no event be released from any obligations and liabilities under this Lease.
(bd) Tenant Except as set forth above, either a transfer of a controlling interest in the shares of the Lessee (if the Lessee is a corporation or trust) or a transfer of a majority of the total interest in the Lessee (if the Lessee is a partnership or a limited liability company) at any one time or over a period of time through a series of transfers, shall provide Landlord with evidence reasonably satisfactory to Landlord that the value be deemed an assignment of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status subject to all of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesprovisions of this Article 12, including, without limitation, reasonable attorneys’ feesthe requirement that the Lessee obtain the Lessor’s prior consent thereto. Except as otherwise provided in this Section 12.1(b), charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises Lessee shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfersell, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing transfer, convey, divest or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver otherwise dispose of any of its interests in the provisions of this Lease or a consent to any TransferLeased Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Asset Transfer Agreement, Asset Transfer Agreement (GlyEco, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedIf at any time or from time to time, the Tenant shall not, either voluntarily wishes to assign this Lease or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or to sublet the Premises whole or any part hereof (eachof the Leased Premises, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that the Tenant shall have first offer to surrender this Lease in respect of the right whole or any part of the Leased Premises (the “Subject Area”) which the Tenant wishes so to assign all or any portion sublet. Notice of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent such offer to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer surrender shall be referred given to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but Landlord not more less than ninety (90) days in any event, prior to the date when on which the Tenant desires proposes that the Transfer surrender be effective. The Landlord shall have a period of ten (10) Business Days after such notice is given to be effective (accept or to decline such offer. If the “Assignment Date”)Landlord accepts, then this Lease shall terminate with respect to the Subject Area on the date proposed in such offer. If the Landlord declines such offer or does not respond within the aforesaid time period, the Tenant shall provide be free to assign this Lease or sublet the Subject Area provided that:
(i) the Tenant shall have received or procured a bona fide written notice offer therefor to take an assignment or sublease which is not inconsistent with, and the acceptance of which would not breach, any provision of this Lease (if this Section 11.02 is complied with) and which the Tenant has determined to accept subject to this Section 11.02 being complied with, and
(ii) the Tenant shall have first requested and obtained the consent of the Landlord (to such assignment or sublease. Any request for the “Assignment Notice”) containing Landlord’s consent shall be accompanied by a true copy of such offer and all information (including references) concerning available to the character Tenant, or any additional information requested by the Landlord, as to the responsibility, reputation, financial standing and business of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions subtenant. The consent of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant not be unreasonably withheld provided that, without limitation, the Landlord shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord not be deemed to be unreasonable for declining to unreasonably withholding its consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in if it refuses such consent upon the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event basis that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(aA) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises offer provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of which is less than the rental and other charges due to Landlord payable under this Lease, or
(B) such offer is made by, or the proposed assignment is in favour of any existing tenant of the Development. If such consent is given the Tenant shall pay twenty-five percent (25%) assign or sublet, as the case may be, only upon the terms set out in the offer submitted to the Landlord. The Landlord may require as a condition of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The its consent that the proposed transferee, assignee or sublessee shall subtenant agree that, in with the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make to observe and to perform all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by the obligations of the Tenant under this Lease and the Tenant agrees with the Landlord that:
(iii) in the case of an assignment, if the Tenant is to receive from any assignee, either directly or indirectly, any consideration or premium for the assignment of the Lease, and any such proposed transfereeeither in the form of cash, assignee goods or sublessee services, the Tenant shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent forthwith pay an amount equal to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change consideration to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(kiv) A list if the Tenant sublets the Subject Area and receives a rental, consideration or premium in the form of Hazardous Materials cash, goods, services or other consideration from the subtenant which is higher than the rental payable under this Lease (on a per square foot basis) to the Landlord for the Subject Area, the Tenant shall pay any such excess to the Landlord in addition all rentals and other costs payable hereunder. Whether or not the Landlord consents to any request as defined in Section 39.7 below)aforesaid, certified the Tenant shall pay to the Landlord all reasonable costs incurred by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date including legal fees, in considering any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described consent and in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of completing any of the provisions documentation involved in implementing any such assignment or sublease. Any advertisement of this Lease the Leased Premises or a consent portion thereof as being available for assignment, sublease or otherwise without the written approval of the Landlord to any Transferthe form and content of such advertisement is prohibited, which approval shall be granted by the Landlord in its sole discretion.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Office Premises Lease (Pivotal Corp), Office Premises Lease (Pivotal Corp)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or allow anyone to use or to come in, a “Transfer”)with, through or under it without Landlord’s prior written like consent, which consent shall not be unreasonably withheld or delayed. Upon any attempted unconsented assignment or sublease, Landlord shall have the right to terminate this Lease. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Any sublease on the Premises executed by Tenant and a third party must terminate when the Term of this Lease expires. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. In the event of any such assignment or sublease of all or any portion of the Premises where the rental or other consideration reserved in the sublease or by the assignment exceeds the rental or prorata portion of the rental, as the case may not unreasonably withhold; providedbe, howeverfor such space reserved in this Lease, that Tenant agrees to pay Landlord monthly, as additional rental, on the Rent Day, the excess of the rental or other consideration reserved in the sublease or assignment over the rental reserved in this Lease applicable to the subleased/assigned space. Notwithstanding the foregoing, Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet to sublease all or any a portion of the Leased Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results (i) an entity resulting from a merger or consolidation of with Tenant; or (ii) any party that acquires entity succeeding to all or substantially all of the business and assets of Tenant; or stock (iii) any direct subsidiary of Tenant (an “Allowable Transfer”)Tenant. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to When Landlord’s consent to a Subject Transfersublease is required, Landlord may require any or all of the following:
shall, within fifteen (a15) business days after Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory submits to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord a written request for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfera sublease, nor which request shall it release identify the proposed subtenant and generally describe the nature of such subtenant’s business and clientele and be accompanied by a copy of the proposed sublease, give Tenant written notice approving or any disapproving of such sublease. If Landlord fails to give Tenant written notice either approving or disapproving of such proposed transfereesublease within such fifteen (15) business day period, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7Landlord shall be deemed to have approved such sublease. Notwithstanding any Transferof the foregoing, Tenant shall remain fully and primarily liable for the payment it is clearly understood that any type of all Rent and other sums due embryonic research or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall associated activities would not be deemed a waiver of any of an approved use in or on the provisions of this Lease or a consent to any TransferPremises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Lease Agreement (Aastrom Biosciences Inc), Lease Agreement (Aastrom Biosciences Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedNotwithstanding any other provisions of this Lease to the contrary, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may covenants and agrees that it will not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all (which term without limitation, shall include the granting of concessions, licenses, and the like) the whole or any portion part of the Demised Premises or mortgage, pledge, or encumber this Lease or any estate or interest therein without in each instance having first received the express prior written consent of Landlord’s consent , and only if an event of default by Tenant shall not have occurred and be continuing. Landlord shall respond to any parent, subsidiary request by Tenant for permission to sublease or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least assign within thirty (30) days with respect to after receipt of written request. In any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as case where Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occursubletting, the Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant named herein shall remain fully liable under this Lease during for the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status obligations of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenseshereunder, including, without limitation, reasonable attorneys’ feesthe obligation to pay the rent and all other amounts provided under this Lease. Further, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If event Tenant sublets the whole or a Transfer part of the Demised Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) amount in excess of the rental and other charges due Minimum Rent (or proportionate Minimum Rent applicable to Landlord under this Leasethe space covered by any sublease) payable by Tenant hereunder, Tenant shall pay twenty-five percent (25%) of all [***] of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment amount to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) as Additional Rent. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee 5.4 prohibiting the right of Tenant from full and primary liability under to assign this Lease.
25.7. Notwithstanding any TransferLease or sublet the Demised Premises without Landlord's prior consent shall not, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or however, be applicable to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions an assignment of this Lease by the Tenant to a subsidiary, affiliate or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for controlling corporation of Tenant, provided (and Landlord (it shall be a condition of the validity of such assignment) that such subsidiary, affiliate or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentcontrolling *** Confidential treatment requested.
Appears in 2 contracts
Samples: Lease Agreement (Silicon Entertainment Inc /Ca/), Lease Agreement (Silicon Entertainment Inc /Ca/)
Assignment or Subletting. 25.1. Except as hereinafter providedLessee agrees to use and occupy the Demised Premises throughout the entire term hereof for the purpose of purposes herein specified and for no other purposes, Tenant shall notin the manner and to substantially the extent now intended, either voluntarily and not to transfer or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all said Demised Premises, or any portion part thereof, whether by voluntary act, operation of law, or otherwise, without obtaining the prior consent of Lessor in each instance. Lessee shall seek such consent of Lessor by a written request therefor, setting forth such information as Lessor may deem necessary. Lessor agrees not to withhold consent unreasonably. Consent by Lessor to any assignment of this Lease or to any subletting of the Demised Premises without Landlord’s consent shall not be a waiver of Lessor's rights under this Article as to any parentsubsequent assignment or subletting. Lessor's rights to assign this Lease are and shall remain unqualified. No such assignment or subleasing shall relieve the Lessee from any of Lessee's obligations in this Lease contained, subsidiary nor shall any assignment or affiliate sublease or other transfer of Tenant; this Lease be effective unless the assignee, sublessee or any party that results from a merger transferee shall at the time of such assignment, sublease or consolidation transfer, assume in writing for the benefit of Tenant; Lessor, its successors or any party that acquires all or substantially assigns, all of the assets or stock terms, covenants and conditions of Tenant this Lease thereafter to be performed by Lessee and shall agree in writing to be bound thereby. Should Lessee sublease in accordance with the terms of this Lease, fifty percent (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer 50%) of any increase in rental received by Lessee over the per square foot rental rate which is being paid by Lessee shall be referred forwarded to herein as a “Subject Transfer”). Notwithstanding and retained by Lessor, which increase shall be in addition to the foregoing, in no event shall Tenant be released from any of its obligations Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 2 contracts
Samples: Office/Warehouse Lease (Lectec Corp /Mn/), Lease Agreement (Surmodics Inc)
Assignment or Subletting. 25.1Tenant will not assign, mortgage, pledge, sell, or in any manner transfer this Lease or any estate or interest hereunder, nor merge with or become part of a different entity and will not sublet the Premises or any part or parts thereof, without express written consent of Landlord. Except as hereinafter providedIf Landlord consents, Tenant shall notpay to Landlord, either voluntarily or by operation of Applicable Lawsas Additional Rent, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this and in addition to all other amounts owning to Landlord under the Lease, fifty percent (50%) of all moneys or other consideration received by Tenant from its transferee as consideration for the transferee’s occupancy of the Premises in excess of the amount owned by Tenant to Landlord under this Lease less reasonable amounts Tenant paid (ratably applied) to secure such excess amounts (attorney’s fees, moving costs, lease concessions, tenant improvements, etc.), which Additional Rent will be paid to Landlord as and when received by Tenant. Landlord’s right to assign this Lease is and will remain absolute and unqualified. Notwithstanding the provisions contained in the foregoing paragraph, Tenant may assign this Lease or sublet the Premises or any part hereof (each, a “Transfer”)portion thereof, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of corporation which controls, is controlled by or is under common control with Tenant; , or to any party that results corporation resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or stock of Tenant Tenant’s business as a going concern (collectively, being an “Allowable TransferTransfer Event”). Any Transfer other than an Allowable Transfer shall be , and any such entity being referred to herein as a “Subject TransferSuccessor Entity”), so long as (a) Tenant and the Successor Entity are jointly and severally and directly liable to Landlord for timely and complete performance of all terms and conditions (including without limitation payment of all Base Rent and Additional Rent) under the Lease; (b) the Successor Entity continues the same use as Tenant and in accordance with the provision of Section 8.1 of the Lease; and (c) both the net worth (assets less liabilities) and the working capital (current assets less current liabilities) of the Successor Entity, as determined in accordance with GAAP, exceed both immediately before and immediately after the Transfer Event the net worth and working capital of the Tenant each at their highest point during the twelve month period immediately preceding the Transfer Event. Notwithstanding At Landlord’s option, the foregoingSuccessor Entity shall enter into a new Lease with Landlord containing the same terms and conditions contained herein. Furthermore, even if the Successor Entity is not related to or affiliated with Tenant, Landlord shall not unreasonably withhold its consent to a proposed transfer or sublet provided the specific conditions outlined in no event shall Tenant be released from any subsections (a), (b) and (c) of its obligations under this Lease.
25.2paragraph are met. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default permitted assignment by Tenant, Tenant shall have will remain liable for the right to collect such rentfaithful performance of all the terms and conditions in this Lease in the event that the assignee will default in the performance of the terms and conditions, or in the payment of the rent required thereby.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Sonic Foundry Inc)
Assignment or Subletting. 25.116.1. Except as hereinafter providedNone of the following (each, Tenant shall nota "Transfer"), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), performed without Landlord’s 's prior written consent, which such consent Landlord may not to be unreasonably withhold; providedwithheld, howeverconditioned or delayed: (a) Tenant selling, that Tenant shall have the right to assign all hypothecating, assigning, pledging, encumbering or any portion of its interest under otherwise transferring this Lease or sublet all subletting the Premises or any portion (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange, or transferred to an Affiliated Party (defined below) or otherwise by reason of a Permitted Transfer (defined below)). For purposes of the Premises without Landlord’s consent to any parentpreceding sentence, subsidiary "control" means (x) owning (directly or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all indirectly) more than seventy percent (70%) of the assets stock or stock other equity interests of Tenant another person or (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred y) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.216.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment "Transfer Date”"), Tenant shall provide written notice to Landlord (the “Assignment "Transfer Notice”") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment proposed Transfer Date; the most recent financial statements of Tenant and of the proposed transferee, assignee or sublessee ("Required Financials"); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s 's affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees Internal Revenue Code of 1986, as amended from time to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisestime.
25.416.3. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) 16.3.1. Tenant shall remain fully liable under this Lease during and each Guarantor shall continue to remain fully liable under such Guarantor’s Guaranty, including with respect to the unexpired TermTerm after the Transfer Date. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) 16.3.2. Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s 's interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 16.3.3. Tenant shall reimburse Landlord for Landlord’s 's actual costs and expenses, including, without limitation, reasonable including attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, not to exceed Three Thousand Dollars ($3,000.00);
(d) 16.3.4. If a Transfer Tenant's transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s 's reasonable costs in marketing and subleasing the PremisesPremises and amounts of such payments not directly attributable to the value of Tenant’s leasehold interest hereunder) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ ' fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) 16.3.5. The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer 16.3.6. Tenant shall not then be effected on Landlord’s formsin material default hereunder in any respect or in default beyond any applicable notice and cure period;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 16.3.7. Such proposed transferee, assignee or sublessee’s 's use of the Premises shall not require any change to be the same as the Permitted Use;
(i) 16.3.8. Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s 's written consent to the same;
16.3.9. Tenant shall pay all transfer and other taxes (jincluding interest and penalties) assessed or payable for any Transfer;
16.3.10. Landlord's consent (or waiver of its rights) for any Transfer shall not waive Landlord's right to consent or refuse consent to any later Transfer; and
16.3.11. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.28.
25.516.4. Any Transfer that is not in compliance with the provisions of this Section 25 or with respect to which Tenant does not fulfill its obligations pursuant to this Section shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.716.5. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.816.6. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee or assignee, then Landlord shall have the option, exercisable by giving notice to Tenant within ten (10) days after Landlord's receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord's delivery of notice electing to exercise Landlord's option to terminate this Lease In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord's consent to a proposed Transfer.
25.916.7. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
16.8. So long as Tenant is not entering into the Permitted Transfer (as defined below) for the purpose of avoiding or otherwise circumventing the remaining terms of this Article 16, Tenant may assign its entire interest under this Lease or sublease all or a portion of the Premises, without the consent of Landlord, to: (a) an affiliate, subsidiary, or parent of Tenant, or (b) a corporation, partnership or other legal entity wholly owned by or under common ownership with Tenant (collectively, an “Affiliated Party”), or (c) to any entity with or into which Tenant or any Affiliated Party may merge or consolidate, or (d) to any entity acquiring substantially all of the assets of or a controlling interests within Tenant, provided that all of the following conditions are satisfied (each such Transfer is referred to herein as a “Permitted Transfer”): (1) Tenant is not in material default under this Lease or in default beyond any applicable notice and cure periods;
Appears in 2 contracts
Samples: Lease Agreement (Innovative Industrial Properties Inc), Purchase and Sale Agreement (Innovative Industrial Properties Inc)
Assignment or Subletting. 25.1. Except Tenant covenants and agrees not to make or permit a Transfer by Xxxxxx, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without LandlordXxxxxxxx’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that conditioned or delayed. A Transfer by Tenant shall have the right to assign include an assignment of this Lease, a sublease of all or any portion part of its the Demised Premises or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant’s interest under this Lease or sublet hi the Demised Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Demised Premises by anyone other than Tenant. Any such Transfer by Tenant without Landlord’s written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any Transfer by Tenant, Tenant shall not be relieved of its obligations under this Lease and Tenant shall remain liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no Transfer by Xxxxxx had been made, unless specifically provided to the contrary in Landlord’s prior written consent. The acceptance of rent by Landlord from any person other than Tenant shall not be deemed to be a waiver by Landlord of the provisions of this Section or of any other provision of this Lease and any consent by Landlord to a Transfer by Tenant shall not be deemed a consent to any parentsubsequent Transfer by Xxxxxx. In giving or withholding its consent to a proposed Transfer by Xxxxxx, subsidiary Landlord shall be entitled to consider any reasonable factor, including but not limited to the following: (a) financial strength and credit history of the proposed subtenant/assignee; (b) business reputation of the proposed subtenant/assignee; (c) proposed use of the Demised Premises by the proposed subtenant/assignee; (d) managerial and operational skills of the proposed subtenant/assignee; and (e) compatibility of the proposed subtenant with other tenants of the Building. Notwithstanding the foregoing, Tenant may assign this Lease or affiliate sublet any or all of its leasehold interest in the Demised Premises to an affiliate, subsidiary, or parent corporation of Tenant; or any party that results (ii) resulting entity from a merger or consolidation of involving Tenant; or any party that acquires (iii) an entity purchasing all or substantially all of the assets of Tenant, in each case without Landlord’s consent, provided that Tenant gives written notice to Landlord with a copy of the assignment or stock sublease and the assignee or sublessee agrees in writing with Landlord to be bound by the terms and conditions of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer the Lease; provided further that no such notice or consent shall be referred to herein as a “Subject Transfer”)required in connection with the transfer of any voting stock or interests of Tenant. Notwithstanding the foregoingDespite any assignment or sublease, in no event shall Tenant will not be released from any relieved of its obligations under this Lease.
25.2, and Xxxxxx remains liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease, to the same extent as though no assignment or sublease by Xxxxxx had been made. Tenant covenants and agrees that in the event Landlord consents to a sublease by Tenant, Tenant and Tenant’s Subtenant shall enter into the form of Sublease, Assumption and Consent Agreement attached hereto as Exhibit E, and in the event Landlord consents to an assignment, Tenant and Tenant’s assignee shall enter into the form of Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or the standard form of agreement in each case then being used by Landlord for subleases and assignments. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect or Xxxxxx’s transferee requests any changes or revisions to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Leaseagreement, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
within ten (e10) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred days after demand by Landlord, except to credit such payment against those due the reasonable costs and expenses of Landlord in connection with any request by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the a Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2including attorneys’ fees.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Insmed Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all condition or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedelay.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety one hundred twenty (90120) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses not to exceed One Thousand Five Hundred Dollars ($1,500) incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications (provided the proposed transferee is of lesser creditworthiness than Tenant as of the Execution Date or the date of the proposed Transfer) or seeking a change in the Permitted Use. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that the rental or other amounts to be paid by the occupant, assignee, manager or other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or jeopardizing manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under Internal Revenue Code (the “Revenue Code”)); provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto, or agree to perform services for a transferee, assignee or sublessee that would cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesor refurbishment allowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.238.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease; provided, however, that Landlord shall first give Tenant ten (10) days’ notice of the reason the Transfer is not in compliance and this Lease shall remain in full force and effect if Tenant, before expiration of such ten (10) days’ notice, either corrects the reason the Transfer is not in compliance or terminates the Transfer.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
25.10. Notwithstanding anything to the contrary in this Article 25, Tenant may engage in the following Transfers (collectively, “Permitted Transfers”) without the prior written consent of Landlord and without regard to the terms of Section 25.4 but subject to the terms of Section 25.7; provided (i) Tenant is not in default under this Lease; (ii) such proposed transferee uses the Premises for the Permitted Use; (iii) such proposed transferee is of equal or greater creditworthiness than Tenant as of the Execution Date and the date of the proposed Transfer and (iv) Tenant gives Landlord written notice at least thirty (30) days prior to the effective date of the proposed assignment or sublease:
(a) A Transfer to a parent, subsidiary, affiliate, division or other entity controlling, controlled by or under common control with Tenant;
(b) A Transfer to a successor entity related to Tenant by merger, consolidation, reorganization or government action; and
(c) A Transfer to an entity that acquires substantially all of the assets of Tenant.
25.11. For the purpose of this Lease, for so long as stock in Tenant is traded on a nationally recognized stock exchange, any sale or transfer of Tenant’s capital stock, redemption or issuance of additional stock of any class shall not be deemed a Transfer of any kind; provided, however, that transfer of more than fifty percent (50%) of Tenant’s capital stock in a single transaction or a single series of transactions pursuant to a resolution of the Board of Directors of Tenant shall be deemed to be a Permitted Transfer subject to the terms of Section 25.10, except that the acquirer of the stock shall be the entity subject to the creditworthiness test under Section 25.10(iii).
Appears in 1 contract
Samples: Lease (Sonus Pharmaceuticals Inc)
Assignment or Subletting. 25.130.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that condition or delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereofpart hereof to any person that as of the date of determination and at all times thereafter directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant hereby immediately and irrevocably assigns to Landlord, as security for (“Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this LeaseAffiliate”); provided that, until to the occurrence of a Default extent permitted by TenantApplicable Laws, Tenant notifies Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate (an “Affiliate Transfer”) and otherwise comply with the requirements of this Lease regarding such Transfer (and if such prior notification is not permitted by Applicable Laws, as soon as reasonably practicable). In addition, Tenant may, without Landlord’s prior written consent but upon prior written notice to Landlord, Transfer the Premises in its entirety in connection with a merger or acquisition of Tenant by a person other than a Tenant Affiliate; provided that, to the extent permitted by Applicable Laws, Tenant notifies Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer (in sufficient detail to allow Landlord’s tax counsel to determine whether the Transfer would be prohibited by the last sentence of Section 30.3) and, if prior notice is not permitted by Applicable Laws, within ten (10) days after the effectiveness of such Transfer; and provided, further, that, if a Transfer described in this sentence would be prohibited by the last sentence of Section 30.3 (as determined by Landlord’s tax counsel), then Landlord may either elect to (a) permit the Transfer notwithstanding the last sentence of Section 30.3 or (b) upon Landlord’s notice to Tenant (delivered no later than fourteen (14) days after Tenant notifies Landlord of the Transfer pursuant to this Section), terminate this Lease as of the date of the effectiveness of such Transfer (except for the provisions hereof that expressly survive the expiration or earlier termination hereof). If Landlord terminates this Lease pursuant to Subsection 30.1(b), then Tenant shall have be liable to Landlord for default damages equal to (i) the right amounts described in Sections 32.5(a)-(c) plus (ii) the then-unamortized amount of the items listed in Subsections 3.2(a)-(b) (provided that, if such early termination occurs prior to collect such rent.the Permitted Early Termination Date, then, for the sake of this sentence, the amounts calculated pursuant to Sections 32.5(b) and (c) shall be calculated using the Permitted Early Termination Date). For purposes of
Appears in 1 contract
Samples: Lease (Avi Biopharma Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that a) Tenant shall have the no right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Demised Premises without the prior written consent of Landlord’s , which consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”)unreasonably withheld. Notwithstanding the foregoing, Landlord's consent shall not be withheld provided that Tenant is not in no event monetary default beyond applicable notice and cure periods and that (i) the assignee has a verifiable net worth of at least Fifteen Million Dollars, (ii) the assignee is operating at least six sit down family style restaurants having total Gross Receipts (for all such restaurants as a group) of at least Ten Million Dollars per year, and (iii) Tenant continues as an obligor under the Lease for two (2) years after the assignment.
(b) Except as provided in Section 7(e) below, if Tenant desires to assign this Lease or sublet all or any portion of the Demised Premises, Tenant shall give Landlord written notice of Tenant's desire to do so at least thirty (30) days prior to the effective date thereof. At such time, Tenant shall also submit to Landlord with the notice such financial statements and other information to show the then-current net worth and business experience of the assignee or sublessee. Landlord shall have twenty (20) days from the receipt of Tenant's notice to notify Tenant whether it consents to the proposed assignment or sublease. If Landlord fails to respond within such twenty (20)- day period Tenant shall send Landlord a reminder notice and if Landlord fails to respond within five (5) days from the receipt of the reminder notice, such failure shall be deemed Landlord's approval of the proposed assignment or sublease. The reminder notice shall set forth the deemed approval consequence of failure to respond. Landlord expressly agrees and acknowledges that it may not withhold its consent to any proposed assignment or sublet unless it specifically explains its reasons for withholding consent.
(c) Except as otherwise specifically provided herein, upon the assignment of this Lease by Tenant, Tenant shall not be released from any of its obligations under this the Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days Upon an assignment complying with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”Section 7(a), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transfereeshall, assignee or sublessee; the Assignment Date; after such two year period, be released from any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable its obligations under this Lease during except for any obligations accruing prior to such assignment. Except as otherwise specifically provided here in, Landlord and Tenant acknowledge and agree that Landlord shall look primarily to the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that assignee for relief upon breach of any of the value of Landlord’s interest under obligations contained in this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;subsequent to any permitted assignment.
(d) If a Transfer of the Premises provides for the receipt byExcept as otherwise specifically provided herein, on behalf of neither Tenant nor Tenant's successors or on account of Tenant of any consideration of any kind whatsoever (includingpermitted assigns, without limitationshall assign, a premium rental for a sublease mortgage, give as security, pledge or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under encumber this Lease, Tenant shall pay twenty-five percent (25%) in whole or in part, by operation of all law or otherwise, or sublet the Demised Premises in whole or in part, or permit the Demised Premises or any portion thereof to be used or occupied by others, without the prior written consent of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reasoneach instance; provided, however, that in no event shall Landlord upon the request of Silver Diner Development, Inc. or its Lendersan Affiliate of Silver Diner Development, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transfereeInc., assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by unreasonably withhold its consent to a leasehold mortgage (or collateral assignment of leasehold to a lender) for Silver Diner Development, Inc. or an Affiliate of Silver Diner Development, Inc.
(e) Notwithstanding any provision of any agreement pertaining to the Transfercontrary contained in this Lease, except for Landlord’s written consent to the same;
(j) provided that Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full monetary default beyond applicable notice and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due cure periods hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right at any time during the Term, without Landlord's consent, to collect assign the Lease to any Affiliate, franchisee or licensee of Tenant or to any entity with which Tenant merges or consolidates or to any entity which acquires all or substantially all of Tenant's assets provided that no such rentassignment shall be valid if it is a device to circumvent the restrictions on assignment of this section.
Appears in 1 contract
Samples: Lease Agreement (Silver Diner Development Inc /Md/)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord Tengion may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease Sub-Sublease or sublet all or any portion of the Sub-Subleased Premises without Landlord’s the prior written consent of Corporate Interiors, which consent may not be unreasonably withheld. Any such proposed assignment or sublease shall, however, remain subject to the Lease. Any assignment or sublet attempted without the consent of Corporate Interiors and not made in accordance with the terms of the Sub-Sublease shall be void and shall not confer any rights, benefits or privileges to the attempted grantee, unless ratified or accepted by Corporate Interiors in writing. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law, and/or a transfer by any person or persons controlling Tengion on the date of this Sub-Sublease of such control (whether by transfer of stock, partnership interests or otherwise) to a person or persons not controlling Tengion on the date of this Lease; provided, however, that Corporate Interiors shall not withhold its consent to (A) any parentproperly registered public offering and sale of stock of Tengion conducted in accordance with all applicable securities laws, subsidiary or affiliate (B) transfers of Tenant; stock of Tengion among existing stockholders, their families and heirs and trusts for the benefit of such stockholders, (C) transfers of stock of Tengion on a publicly traded exchange, (D) any original issuance of capital stock the primary purpose of which is to provide investment capital to Tengion, (E) acquisition of all or any party that results from a merger portion of the outstanding securities or ownership interests of Tengion by merger, consolidation or otherwise where the acquiring person or entity has greater net assets than Lessee’s net assets as of Tenant; December 31, 2005 or any party that acquires (F) the sale of all or substantially all of the assets or stock of Tenant Lessee (an “Allowable Transfer”). Any Transfer other including this Agreement) related to the business of Lessee conducted at the Sub-Sublease Premises to a purchaser with greater net assets than an Allowable Transfer shall Lessee as of December 31, 2005, provided the purchaser agrees in writing to be referred to herein as a “Subject Transfer”). Notwithstanding bound by the foregoing, in no event shall Tenant be released from any terms and conditions of its obligations under this Lease.
25.2Sub-Sublease. In the event Tenant desires to effect a Transferof any assignment of this Sub-Sublease made with or without the consent of Corporate Interiors, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant Tengion nevertheless shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining remain liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use performance of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants of this Sub-Sublease. If Corporate Interiors gives its consent, it shall be a condition to effectiveness of the sublease or assignment that a fully executed copy thereof (in form and substance approved by Corporate Interiors) be delivered to Corporate Interiors, and that any assignee execute and deliver to Corporate Interiors an assumption of liability agreement in form reasonably satisfactory to Corporate Interiors, including an assumption by the assignee of all of the obligations of Tengion and the assignee’s ratification of and agreement to be kept bound by all the provisions, waivers, terms and performed by Tenantconditions of this Sub-Sublease. The acceptance If Tengion shall request the consent of Rent Corporate Interiors to any assignment of this Sub-Sublease or any other sum due hereunder, subletting of all or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any part of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by TenantSubleased Premises, Tenant shall have pay and deliver to Landlord as additional rent Corporate Interiors’ costs related thereto, including Corporate Interiors’ reasonable attorneys’ fees. In the right to collect such rentevent of any assignment of this Sub-Sublease made with or without Corporate Interiors’ consent, Tengion nevertheless shall remain liable for the performance of all of the terms, conditions and covenants of this Sub-Sublease.
Appears in 1 contract
Samples: Sub Sublease Agreement (Tengion Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot directly or indirectly, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, involuntarily (i) assign, pledgeconvey, encumber mortgage or otherwise transfer this Lease, Sublease or any interest under it; (ii) allow any transfer of the Sublease or any lien upon Tenant’s interest by operation of law or otherwise; (iii) sublet the Premises or sub-sublet all or any part hereof of the Premises; or (eachiv) permit the use or occupancy of all or any part of the Premises by anyone other than Tenant. Notwithstanding the foregoing, a “Transfer”)Tenant shall, without Landlord’s upon 30 days prior written consentnotice to Landlord and to Prime Landlord, which but without obtaining the prior written consent of Landlord may not unreasonably withhold; providedor Prime Landlord, however, that Tenant shall have the right to make a transfer not otherwise permitted hereunder or assign all or any portion of its interest under this Lease to (A) a corporation or sublet all other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or any portion corporate reorganization, or by the purchase of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock the ownership interests of Tenant provided that (an i) such merger or consolidation, or such transfer, acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring the Lease, and (ii) the net worth (as determined in accordance with generally accepted accounting principles (“Allowable TransferGAAP”). Any Transfer other ) of Tenant after the transfer or the net worth (as determined in accordance with GAAP) of the assignee, as the case may be, is not less than an Allowable Transfer shall be referred to herein the net worth (as a “Subject Transfer”). Notwithstanding the foregoing, determined in no event shall accordance with GAAP) of Tenant be released from any as of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer of Tenant’s most current quarterly or annual financial statements, and (iii) any such assignee shall agree in writing to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character assume all of the proposed transfereeterms, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms covenants and conditions of this Sublease arising after the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use effective date of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Useassignment, or jeopardizing directly (B) to any entity controlling, controlled by or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; common control with Tenant, provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Prime Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect approve the form of any such rentsublease or assignment (such approval not to be unreasonably withheld, delayed or conditioned).
Appears in 1 contract
Samples: Sublease (Critical Therapeutics Inc)
Assignment or Subletting. 25.1Tenant shall have the right to sublease or assign this Lease to a parent, subsidiary, affiliate, or other entity controlling or in common control with Tenant (collectively, an “Affiliate”) upon prior written notice to Landlord but without the requirement of prior written consent so long as the entity is of equal or better financial strength and provides a security deposit equal to the current security deposit being held by Landlord or $400,000, whichever is greater (unless otherwise agreed by the Landlord, at Landlord’s sole discretion) acceptable to Landlord and Landlord has been provided with a copy of such Affiliate’s financials prior to execution of the sublease or assignment. Except for a Transfer by Tenant to an Affiliate as set forth above, Tenant covenants and agrees not to make or permit a Transfer by Txxxxx, as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)defined, without LandlordLxxxxxxx’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld. A “Transfer by Tenant” shall include an assignment of this Lease, however, that Tenant shall have the right to assign a sublease of all or any portion part of its the Premises, any transfer of 30% or more of the voting stock or interests of Tenant, or any assignment, sublease, license, franchise, transfer, mortgage, pledge or encumbrance of all or any part of Tenant’s interest under this Lease or sublet in the Premises, by operation of law or otherwise, or the use or occupancy of all or any portion part of the Premises by anyone other than Tenant. Except as otherwise provided herein, any such Transfer by Tenant without Landlord’s written consent shall be void and shall constitute a default under this Lease. In the event Landlord consents to any parentTransfer by Tenant, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall not be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any relieved of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease Lease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable liable, jointly and severally and as a principal, and not as a guarantor or surety, under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound same extent as though no Transfer by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by TenantTxxxxx had been made. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, rent by Landlord from any person or entity other than Tenant shall not be deemed to be a waiver of any by Landlord of the provisions of this Section or of any other provision of this Lease or and any consent by Landlord to Transfer by Tenant shall not be deemed a consent to any Transfer.
25.8subsequent Transfer by Txxxxx. [Intentionally omitted]
25.9Landlord shall be entitled to consider any reasonable factor in giving or withholding its consent to a proposed Transfer by Txxxxx. If Tenant sublets covenants and agrees that in the Premises or any potion thereofevent Landlord consents to a sublease by Txxxxx, Tenant hereby immediately and irrevocably assigns Txxxxx’s subtenant shall enter into the form of agreement then being used by Landlord for subleases, and in the event Landlord consents to an assignment, Txxxxx and Txxxxx’s assignee shall enter into the form of agreement then being used by Landlord for assignments. In the event Tenant or Tenant’s transferee requests any changes or revisions to any such agreement, Tenant shall pay to Landlord, as security within 10 days after demand by Landlord, the reasonable costs and expenses of Landlord in connection with any request by Txxxxx for Tenant’s obligations under this Leaseconsent to a Transfer, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentincluding attorneys’ fees.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided(a) Lessee shall not sublet, Tenant shall notmortgage, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber assign or otherwise transfer encumber this Lease, the Premises, or any portion thereof, or allow the Premises, or any portion thereof, to be used for any purpose other than the Permitted Use without the prior written consent of Lessor, which consent may be withheld by Lessor in Lessor's sole good faith judgment. Without limitation, Lessor may withhold its consent if such proposed assignment or subletting would not be for the Permitted Use hereunder or if Lessor is dissatisfied with the credit worthiness or business reputation of the proposed assignee or sublessee, such proposed assignment or subletting would violate an exclusive use provision granted to any other tenant in the Building, or such proposed assignee or sublessee would increase the traffic in or other use of the Common Areas. In the event the Lessee desires to assign or sublet the Premises or any part hereof (eachPremises, a “Transfer”), without Landlord’s Lessee shall provide Lessor with not less than 30 days prior written consentnotice of Lessee's request, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have specifying in detail any and all terms of such assignment or sublease ("Lessee's Request"). Lessor reserves the right to assign all or any portion cancel and terminate this Lease upon 60 days prior written notice by giving written notice to Lessee within 30 days after Lessor's receipt of Lessee's Request. In the event that Lessor has not notified Lessee of its interest under approval or denial of Lessee's Request, or of Lessor's exercise of its right to terminate this Lease, within 30 days after Lessor's receipt of Lessee's Request, Lessor shall be deemed to have (i) denied Lessee's request to assign or sublease this Lease and (ii) not exercised its right to terminate. In addition, in the event Lessor consents to an assignment or sublet all sublease of the Premises, and such assignment or sublease results in rental payments in excess of the monthly payments due and owing under the terms of this Lease (other than pursuant to this provision), such excess rental payments shall be deemed to be rental payments due and owing solely to Lessor. In the event that Lessor elects to have any portion proposed sublease or assignment document submitted by Lessee reviewed by an attorney on Lessor's behalf, Lessee agrees to pay on demand the reasonable attorney's fees incurred by Lessor in connection with such review. At Lessor's request, Lessee shall use the standard form of assignment and subletting agreement proposed by Lessor (with such modifications as are reasonably necessary to reflect the agreement between Lessee and the proposed subtenant or assignee). In addition, in the event Lessor consents to an assignment or sublease of the Premises without Landlord’s consent to which contemplates alterations or renovations and Lessor incurs any parentarchitectural or engineering design fees in connection therewith, subsidiary Lessee shall pay Lessor on demand the amount of such fees incurred by Lessor.
(b) No assignment, subletting or affiliate other transfer by Lessee shall relieve Lessee of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its Lessee's obligations under this Lease.
25.2. In the event Tenant desires Any consent by Lessor to effect a Transferan assignment, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any subletting or other Transfer, but transfer by Lessee shall not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining a waiver of Lessor's right to withhold its consent to any future assignment, sublease or other transfer by Lessee nor a Transfer consent to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, future assignment or sublease or other transfer, but shall only be deemed to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s be a consent to a Subject Transferthe one assignment, Landlord may require any sublease or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;other transfer for which such consent is given.
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expensesIf Lessee is a corporation, includingthen any transfer of this Lease from Lessee by merger, without limitation, reasonable attorneys’ fees, charges and disbursements incurred consolidation or dissolution or any change in connection with the review, processing and documentation of such request;
(d) If ownership or power to vote a Transfer majority of the Premises provides voting stock in Lessee outstanding at the time of execution of this Lease shall constitute an assignment for the receipt bypurpose of this Lease. For purposes of this section, on behalf the term "voting stock" shall refer to shares of or on account stock regularly entitled to vote for the election of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess directors of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentcorporation involved. If said consideration consists of cash paid to TenantLessee is a general partnership having one or more corporations as partners or if Lessee is a limited partnership having one or more corporations as general partners, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 the preceding sentence shall be void.apply to each of such corporations as if such corporation alone had been the Lessee hereunder. If Lessee
25.6. The consent by Landlord to is a Transfer general partnership (whether or not having any corporation as partners) or if Lessee is a limited partnership (whether or not having any corporation as general partners), the transfer of the partnership interest or interests constituting a majority shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee constitute an assignment for purposes of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. 12.1 Except as hereinafter providedprovided herein, Tenant Subtenant shall not, either voluntarily without the express written consent of Sublandlord (which consent shall not be unreasonably withheld, delayed or conditioned, it being agreed by Subtenant that failure of the Prime Landlord to provide its consent is a reasonable basis for Sublandlord to withhold its consent) and of the Prime Landlord (to the extent required pursuant to the Prime Lease), (i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Subtenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (iv) permit the occupancy of the Premises or any part thereof by anyone other than Subtenant. In addition, for the purposes of this Sublease, unless the stock or other ownership interests in Subtenant is traded on a regulated securities exchange (and excepting any future additional stock issuance or any “going private” transaction), the sale or transfer (which term shall include, without limitation, the exchange, issuance and redemption) of fifty-one percent (51%) or more, or such smaller percentage as would result in a change in the voting control of Subtenant (whether such sale or transfer occurs at one time or at intervals so that, in the aggregate, over the Term of this Sublease, such transfer shall have occurred) shall be treated as if such sale or transfer or transaction(s) were, for all purposes, an assignment of this Sublease and shall be governed by the provisions of this Article 12. If Sublandlord consents thereto, and Sublandlord would have the right to enter into such assignment or sublease under the terms and conditions of the Prime Lease, Sublandlord shall use commercially reasonable efforts to obtain the consent of the Prime Landlord if and to the extent required by the terms of the Prime Lease. Any actual and reasonable out-of-pocket cost of obtaining the Prime Landlord’s consent and Sublandlord’s consent including, without limitation, attorneys fees and disbursements, shall be borne by Subtenant. The granting by Sublandlord and the Prime Landlord of consent to a sublease, assignment or other transfer or occupancy in any one instance shall not relieve the Subtenant of the obligation to obtain such consent to any further such transaction.
12.2 No assignment or transfer by Subtenant shall release Subtenant or Subtenant’s Guarantor (if any) from its obligations under this Sublease or the Guaranty (as applicable).
12.3 No permitted assignment or transfer of the subleasehold interest, whether or not consent is required, shall be effective and no permitted sublease, occupancy or other transfer shall commence if an Event of Default (as hereinafter defined) by Subtenant shall have occurred or (ii) if a condition or event then exists which, with or without notice or the lapse of time, or both, would if not cured constitute an Event of Default by Subtenant, unless and until such condition or event shall have been cured within the applicable cure period, if any. No assignment, subletting, other transfer or occupancy shall relieve Subtenant from Subtenant’s obligations and agreements hereunder and Subtenant shall continue to be liable as a principal and not as a guarantor or surety to the same extent as though no assignment, subletting, other transfer or occupancy had been made. Notwithstanding the foregoing provisions of this Sublease, unless the Prime Landlord’s consent is required pursuant to the provisions of the Prime Lease, Sublandlord’s prior consent shall not be required for a sublease or assignment by Subtenant (including, without transactions deemed an assignment under Section 12.1 above) to a parent, affiliate or successor entity to Subtenant, provided the assignee (or surviving entity under any such deemed assignment transaction) has a net worth not less than Subtenant’s net worth as of the date of this Sublease, and Subtenant furnishes reasonable documentation thereof to Sublandlord at least five (5) days prior to the applicable assignment or sublease date (or, if disclosure not then permitted by applicable law, within five (5) days following such time as disclosure thereof is lawfully permitted) (each, a “TransferPermitted Transferee”)
12.4 If Subtenant desires to assign, without Landlord’s prior written consentsublet, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have permit another to occupy or transfer (except to a Permitted Transferee) as of a date certain (the right to assign all “Termination Date”) the entire Premises or any a portion of its interest under this Lease or sublet all or any portion of thereof (the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires “Offered Premises”) for all or substantially all of the assets or stock balance of Tenant the Term (an collectively, to “Allowable TransferSublet”). Any Transfer other than an Allowable Transfer Subtenant shall be referred to herein as so inform Sublandlord in writing (a “Subject TransferNotice of Intent to Sublet”). Notwithstanding Sublandlord shall have the foregoingright, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least by notice given within thirty (30) days after receipt of a Notice of Intention to Sublet, to require Subtenant to surrender the Offered Premises upon the Termination Date. Subtenant shall not be required to have entered into a definitive agreement with the proposed transferee as a condition to delivering a Notice of Intent to Sublease. Failure by Sublandlord to respond within such thirty (30) day period shall be deemed a waiver of Sublandlord’s right to require surrender. If Sublandlord shall elect to require surrender of the Offered Premises, then the Sublease with respect to any other Transfer, but not more than ninety (90) days in any event, prior such Offered Premises shall expire on the Termination Date and the Sublease shall be amended as of the Termination Date to reflect the surrender. Subtenant shall be responsible for the cost of constructing or reconstructing of demising walls and a public corridor and code required entrances and egresses to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)public corridor and other modifications, Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character if necessitated by reason of the proposed transfereesurrender of the Offered Premises or as otherwise required by law.
12.5 If Sublandlord shall not exercise its right to require surrender of the Offered Premises or is deemed not to have done so, assignee or sublessee; then Subtenant shall have the Assignment Date; any ownership or commercial relationship between Tenant right, subject to obtaining Sublandlord’s and the proposed transferee, assignee or sublessee; and Prime Landlord’s consent (if required by the consideration and all other material terms and conditions of Prime Lease) for the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given transaction pursuant to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance)paragraph 12.1 hereof, and any change in use that such transfereefor a period of six (6) months thereafter (failing which the provisions of Section 12.4 shall again apply) to assign, assignee sublease, permit occupancy by another or sublessee proposes to make in otherwise transfer the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4Premises proposed to be assigned, sublet, transferred or occupied. As conditions precedent In the event of any such assignment, sublease or other transfer, Subtenant shall pay to Landlord’s consent to a Subject TransferSublandlord, Landlord may require any or all as Additional Rent each month, fifty percent (50%) of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status entire amount of the proposed transfereeExcess Income (as hereinafter defined), assignee or sublessee;
(c) Tenant received by Subtenant with respect thereto, other than from any Permitted Transferee. Subtenant shall reimburse Landlord be responsible, at its own expense, for Landlord’s actual payment of all costs and expensesexpenses related to the assignment, sublease, occupancy or other transfer, including, without limitation, reasonable attorneys’ feesbroker’s and legal fees and the cost of fixing up the space, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease the cost of constructing demising walls, corridors and code required entrances and egresses and such other modifications, if necessary or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess as may be required by law or by reason of the rental and other charges due to Landlord under this Lease, Tenant demise of space. The term “Excess Income” shall pay twenty-five percent (25%be calculated in the same manner as “Assignment/Sublease Profits” as set forth in Section 12.6(B) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentthe Prime Lease. If said consideration consists of cash paid to Tenant, payment to Landlord Subtenant shall be made furnish Sublandlord upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), request with a detailed statement certified by an officer of Subtenant showing the proposed transferee, assignee amount of rental or sublessee to be true other consideration received and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy such additional documentation of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee Excess Income as described in Section 39.2Sublandlord may reasonably request.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Sublease (Chiasma, Inc)
Assignment or Subletting. 25.1. 28.1 Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all withhold or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedelay.
25.2. 28.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer, not to exceed One Thousand Five Hundred Dollars ($1,500).
25.3. 28.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises, (c) Landlord’s desire to exercise its rights under Section 28.8 to cancel this Lease and (d) any adverse effect of the proposed Transfer on the status of Landlord’s indirect parent’s status as a Real Estate Investment Trust under the Internal Revenue Code, as amended from time to time. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. 28.4 As conditions precedent to LandlordTenant subleasing the Premises to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, not to exceed One Thousand Five Hundred Dollars ($1,500);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises or in selling personal property or equipment to the proposed transferee, assignee or sublessee) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. .. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer;
(k) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(l) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 40.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.242.2.
25.5. 28.5 Any Transfer that is not in compliance with the provisions of this Section 25 Article 28 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 28.6 The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 28.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. 28.8 If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease Agreement (Epicept Corp)
Assignment or Subletting. 25.1Tenant shall have the one-time right to assign this Lease to (a) any Affiliate of Tenant; (b) any entity resulting from a merger or consolidation; or (c) to an entity purchasing substantially all of the stock or assets of Tenant (collectively, a “Business Transfer”). Except as hereinafter providedprovided in (a), (b), or (c) preceding, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly agrees not to sell, hypothecate, assign, pledgemortgage, encumber pledge or otherwise in any manner transfer this Lease, or Lease and not to sublet the Leased Premises or any part hereof (each, a “Transfer”), or parts thereof without Landlord’s the prior written consent, consent of Landlord in each instance which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that conditioned or delayed. As a condition to any Business Transfer: (a) Tenant shall have the right to assign all or any portion of its interest must not be in default under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of TenantLease; or any party that results (b) Tenant must give Landlord written notice at least fifteen (15) business days before such Transfer; and (c) if such Transfer will result from a merger or consolidation of Tenant with another entity, then the Credit Requirement (defined below) must be satisfied. Tenant; ’s notice to Landlord shall include information and documentation evidencing the Business Transfer. If requested by Landlord, Tenant’s successor shall sign and deliver to Landlord a commercially reasonable form of assumption agreement. “Affiliate” shall mean an entity controlled by, controlling or any party that acquires all or substantially all under common control with Tenant. The “Credit Requirement” shall be deemed satisfied if, as of the assets date immediately preceding the date of the Transfer, the Net Worth of the entity with which Tenant is to merge or stock of Tenant (an “Allowable Transfer”)consolidate is equal to or greater than Tenant’s. Any Transfer other than an Allowable Transfer in violation of this Section 4.4 shall, at Landlord’s option, be deemed a default by Tenant as described in Section 9, and shall be referred voidable by Landlord. Tenant shall indemnify, defend, protect and hold harmless Landlord from and against any and all losses resulting from claims that may be made against Landlord by the transferee or anyone claiming under or through any transferee or by any broker or other persons or entities claiming a commission or similar compensation in connection with the proposed assignment or sublease, irrespective of whether Landlord shall give or decline its consent to herein as a “Subject Transfer”). Notwithstanding the foregoingany proposed assignment or sublease, in no event or if Landlord shall Tenant be released from exercise any of its obligations options under this Lease.
25.2Section 4.4. In All permitted subleases shall provide that in the event Tenant desires to effect of a Transferdefault under this Lease which results in a termination hereof or if this Lease is rejected in a bankruptcy proceeding, thenthe sublease shall be terminated unless Landlord, at least twenty Landlord’s option, elects in writing to recognize the sublease as a direct lease with Landlord. Any consideration paid to Tenant for a permitted sublease or assignment (20other than a Business Transfer) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to that exceeds the date when amount Tenant desires the Transfer to be effective must pay Landlord under this Lease (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment NoticeExcess Consideration”) containing information (including references) concerning the character shall be paid to Landlord. Where a part of the proposed transfereeLeased Premises is subleased or assigned, there shall be a prorating of all Base Rent and Additional Rent payable under this Lease and the rent payable under the assignment or the sublease to determine whether Excess Consideration is payable to Landlord. Excess Consideration shall exclude documented reasonable leasing commissions paid by Tenant, payments attributable to the amortization of the cost of disclosed Tenant improvements made to the Leased Premises at Tenant’s cost for the assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transfereesubtenant, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable reasonable, documented actual cash out-of-pocket costs incurred paid by Landlord in reviewing Tenant, such as attorneys’ fees directly related to Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, obtaining an assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premisessublease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment this Excess Consideration to Landlord at the end of each calendar year during which Tenant collects any Excess Consideration. Each payment shall be made upon receipt sent with a detailed statement showing the total consideration paid by Tenant of such cash payment;
(e) The proposed transferee, the subtenant or assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should exclusions from consideration permitted by this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premisessection. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent Consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions one assignment of this Lease or to one licensing or subletting of the Leased Premises shall not be a consent waiver of Landlord’s rights hereunder as to subsequent assignment or subletting, or act to release any Transfer.
25.8. [Intentionally omitted]
25.9guaranty of this Lease, Landlord’s rights to approve an assignment of this Lease are and shall remain unqualified. If Tenant sublets becomes bankrupt, the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant bankruptcy trustee shall not have the right to collect such rentassume or assign this Lease unless the trustee complies with all requirements of the United States Bankruptcy Code, and Landlord expressly reserves all of its rights, claims and remedies thereunder.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, The Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have do any of the right following without the Landlord's written consent and without payment of a fee to the Landlord: (a) assign all or any portion of its interest under this Lease or to any assignee (other than an assignee which is a financial institution the deposits in which are insured by an agency if the United States (a "Permitted Assignee")); (b) sublet all or any portion part of the Premises Rental Space; (c) permit any other person or business to use the Rental Space; or (d) mortgage or encumber this Lease. Any consent by Landlord to an otherwise prohibited assignment or subletting shall not in any manner be construed to relieve Tenant or any assignee or sublessee from obtaining the Consent in writing of Landlord to any further otherwise prohibited assignment or subletting. Any prohibited assignment or sublease made by Tenant without Landlord’s 's prior written consent shall be void and a default under this Lease, giving Landlord the right to exercise all of its remedies hereunder, including but not limited to the right to Terminate this Lease. Landlord agrees (i) that Tenant may assign this Lease to any Permitted Assignee upon notice to Landlord, but without Landlord's permission, and (ii) that its consent to any parent, subsidiary otherwise prohibited assignment or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of sublease requested by Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall will not be referred to herein as a “Subject Transfer”)unreasonably withheld. Notwithstanding the foregoing, Landlord agrees that in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect either assign this Lease to an assignee which is not a TransferPermitted Assignee or sublet the Rental Space during the term of this Lease, then, at least twenty Tenant will notify Landlord in writing of its desire to assign or sublet and provide Landlord with the following information;
(201) Name and address of prospective assignee or sub-tenant;
(2) Business of prospective assignee or sub-tenant;
(3) Proposed assignment or subletting start date;
(4) Personal financial statements and income tax returns for prior three years of prospective assignee or sub-tenant;
(5) Business code number or Standard Industrial Classification (SIC) number of prospective assignee or sub-tenant. Landlord will review the information received and notify Tenant within fourteen (14) days with respect thereafter whether or not it will consent to a sublease and at least thirty (30) days with respect the assignment or subletting. Landlord will be under no obligation whatsoever to agree to any other Transferotherwise prohibited assignment or subletting where, but not more than ninety in the Landlord's sole and absolute discretion, to do so would:
(901) days Permit an undercapitalized or financially unstable person or entity to enter into possession of the Rental Space;
(2) Permit a use which would conflict or compete in a substantially similar business with any eventtenant then renting space in the Eastpointe Shopping Plaza;
(3) Subject the Shopping Center, prior or the Rental Space, to the date when provisions of the New Jersey Environmental Cleanup Responsibility Act, or any superseding federal environmental regulations, as amended from time to time;
(4) Result in the expenditure of any funds by Landlord;
(5) Require review of any assignment or subletting proposal where a Tenant desires was delinquent in the Transfer payment of any monetary obligation or in breach of any performance obligation imposed by the lease terms; -
(6) Require Landlord to obtain any federal, state, county or municipal permit to allow the assignment or subletting;
(7) Otherwise make the Landlord deem itself to be effective (insecure In the “Assignment Date”)event Landlord determines to agree to any such otherwise prohibited assignment or subletting, the Landlord will cause to be prepared a written agreement of assignment or subletting between Landlord, Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character and Assignee or Subtenant setting forth all of the proposed transferee, assignee terms of agreement between the parties. No such assignment or sublessee; subletting will be effective until the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and written agreement is executed by all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requireparties. Tenant shall reimburse Landlord for all reasonable attorneys’ The Landlord's attorney's fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premisesassignment or subletting shall be paid in full by Tenant. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee an assignment or sublessee subletting relieve or release the Tenant of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust its obligations under the Code; provided that (a) Landlord agrees Lease which are attributable to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were term of the transfer, Lease prior to the assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisessubletting.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall A. Xxxxxx will not, either voluntarily or by operation of Applicable Laws, directly or indirectly sellindirectly, hypothecatevoluntarily or involuntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and will not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that the authorized representatives of Tenant shall have excepted) to occupy or use the right to assign all Premises or any portion thereof (collectively "assign") without first receiving the written consent of its interest under Landlord. Lxxxxxxx agrees not to unreasonably withhold such consent, but may in lieu of granting such consent terminate this Lease if more than 25% of the Premises is to be sublet or sublet assigned or exercise its other rights as hereinafter provided. Any such assignment without Lxxxxxxx's consent will be void and will, at the option of Landlord, constitute a default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one assignment will not be deemed to be a consent to any other or further assignment. This Lease and any interest in it will not be assignable as to the interest of Tenant by operation of law without the prior written consent of Landlord.
B. If Tenant contemplates an action under Subparagraph A, Tenant will give Landlord forty-five (45) days' notice thereof, designating the terms proposed and, if a sublease, the term thereof and space proposed to be sublet. Tenant will also provide a current financial statement of any proposed assignee and any further information which Landlord may reasonably request . Landlord may, upon notice to Tenant within thirty (30) days after receipt of Tenant's notice of intention to assign, (i) assign from Tenant any portion of the Premises without Landlord’s consent proposed by Tenant to any parentbe assigned, subsidiary or affiliate for the term for which such portion is proposed to be assigned, but at the same Rent as Tenant is required to pay to Landlord under this Lease for the same space, computed on a pro rata share of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all rentable square footage basis, (ii) terminate this Lease as it pertains to the portion of the assets or stock of Premises so proposed by Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective assigned, (the “Assignment Date”)iii) approve Tenant's proposal to assign, Tenant shall provide subject to Landlord's subsequent written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character approval of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship specific agreement between Tenant and the proposed transfereeassignee, assignee or sublessee; and the consideration and all other material terms and conditions (iv) terminate this Lease in its entirety if, after said subleasing or assignment, Tenant will have then subleased or assigned more than 25% of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use original square footage of the Premises. In no event shall Landlord be deemed Upon acceptance of the offer to be unreasonable for declining terminate this Lease as it pertains to consent the portion of the Premises Tenant seeks to a Transfer assign or upon acceptance of the offer to a transfereeterminate this Lease in its entirety, assignee this Lease (in its entirety or sublessee as it pertains to said portion, as the case may be) will terminate as of poor reputation, lacking financial qualifications, seeking a change the end of the calendar month in which such notice of acceptance is given to Tenant. Tenant must then vacate and surrender all or such portion of the Permitted Use, Premises and the provisions of this Lease applicable to termination upon expiration of the Term will apply to all or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee termination will not relieve Tenant from liability for any breach or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection default with the review, processing and documentation of respect to all or such request;
(d) If a Transfer portion of the Premises provides for occurring prior to termination.
C. For purposes of this paragraph, the receipt byfollowing events will be deemed an assignment of this Lease or a sublease of the Premises, on behalf as appropriate: (i) the issuance of an equity interest (whether a stock or on account partnership interest or otherwise) to any person or group of Tenant related persons, in a single transaction or a series of any consideration related or unrelated transactions such that, following such issuance, such person or group will have control of any kind whatsoever Tenant; (ii) a transfer of control in a single transaction or a series of related or unrelated transactions (including, without limitation, a premium rental for a sublease by consolidation, merger, or lump sum payment for an assignmentreorganization), but excluding Tenant’s reasonable costs in marketing and subleasing except that the Premises) in excess transfer of the rental and outstanding stock of any corporate Tenant by persons or parties other charges due than "insiders" within the meaning of the Securities Exchange Act of 1934, as amended, through any recognized national or international securities exchange or through the "over-the-counter" market will not be included in the determination of whether control has been transferred; (iii) a dissolution of a corporation, partnership, limited liability company or other entity; or (iv) the sale or transfer of substantially all the assets of the Tenant to Landlord under another party. For purposes of this Leaseparagraph, "control" will mean ownership of not less than 50% of the voting stock of a corporation or of not less than 50% of the legal or equitable interest in any other business entity.
D. A corporate Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, will have the right in the event Landlord gives such proposed transfereeof a merger, assignee consolidation, reorganization, or sublessee notice that recapitalization, whether or not Tenant is in Default under this Leasesurvives as the surviving corporation, such proposed transferee, assignee to assign or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should transfer this Lease be terminated for any reasonto such surviving corporation; provided, however, that in no event shall Landlord such right of assignment or its Lenders, successors or assigns transfer will be obligated limited to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, an assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) whose net worth is equal to or greater than the net worth of Tenant at the time of such assignment or transfer and (ii) whose historical profitability (in both duration and amount) is equal to or greater than Tenant, as viewed at the time of the proposed assignment or transfer. In the event Tenant contemplates making an assignment or transfer as provided in this subparagraph, Tenant will give thirty (30) days' notice to Landlord shall not be bound by any provision of any agreement pertaining its intention to make such assignment or transfer and will furnish Landlord with all pertinent information as to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy net worth of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correcttransferee.
E. In all events, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver if this Lease is assigned other than to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating Txxxxx will continue to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability primarily liable under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully Lease and primarily the assignee will execute an agreement by which it assumes and agrees to be jointly and severally liable for the payment complete performance by Txxxxx of all Rent and other sums due or to become due its obligations hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and F. Xxxxxx irrevocably assigns to Landlord, as security for the performance of Tenant’s 's obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (assignment of all or a any part of the Premises. A receiver for Tenant Txxxxx, appointed on Landlord’s Lxxxxxxx's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided Lease except that, until the occurrence of a Default an act of default by Tenant, Tenant shall will have the right to collect such rent.
G. In no event may Tenant assign this Lease or sublet the Premises, or any portion thereof, to any then-existing or prospective tenant of the Building. In addition, neither Tenant nor any other person having an interest in the possession, use, occupancy, or utilization of the Premises will enter into any lease, sublease, license, concession, or other agreement for use, occupancy, or utilization of space in the Premises which provides for rental or other payment for such use, occupancy, or utilization based in whole or in part on the net income or profits derived by any person from the property leased, used, occupied, or utilized (other than an amount based on a fixed percentage or percentages of receipt or sales) and any such purported lease, sublease, license, concession, or other agreement is void and ineffective as a conveyance of any right or interest in the possession, use, occupancy, or utilization of any part of the Premises.
H. Xxxxxx will pay to Landlord the amount of Landlord's reasonable cost of processing every proposed assignment (including, without limitation, the cost of attorneys' and other professional fees and the administrative, accounting, and clerical time of Landlord), and the amount of all reasonable direct and indirect expenses as well as a minimum fee to Landlord of $500 arising from any assignee's or subtenant's taking occupancy (including, without limitation, the expenses of freight elevator operation for the moving of furnishings, trade fixtures and other personal property, security service, janitorial and cleaning service, and rubbish removal service). Notwithstanding anything to the contrary contained in this Lease, Landlord will have no obligation to process any request for its consent to assignment or sublease prior to Lxxxxxxx's receipt of payment by Tenant of the amount of Landlord's estimate of the processing costs and expenses and all other direct and indirect costs and expenses of Landlord and its authorized representatives arising from such matter.
I. If Landlord consents to any assignment or subletting, sixty-six (66) Fifty (50) percent of the amount, less commissions if applicable, by which all consideration received by Tenant in connection with such assignment or subletting, whether denominated as rent or otherwise, exceeds the consideration which Tenant is obligated to pay Landlord under this Lease will be paid to Landlord promptly after receipt as additional Rent under the Lease without affecting or reducing any other obligation of Tenant hereunder. If less than the entire Premises is assigned or sublet, Tenant's rental obligations shall be prorated based upon the amount of space assigned or sublet. (For example, if Tenant was leasing space at $3.00 per rentable square foot per month and subleased four (4) offices in the Premises, containing a total of 1,000 rentable square feet, for $4,000 per month, Tenant would owe the Landlord the sum of $660.00 $500.00 per month, calculated as follows: Sublease rent of $4000 minus Tenant's prorated rent for that space of $3000 (1,000 sq. ft. sublet times $1.00/sq. ft. times .66 .50).
Appears in 1 contract
Samples: Office Lease (Bf Enterprises Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; ’s parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; ’s assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant’s obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made, provided that acquires performance by any such assignee or sub lessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable there under. Any mortgage, pledge, sublease or assignment made in violation of this Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets or stock Premises deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as any sublease of a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment give notice to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leaseexistence and term thereof, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any name and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy address of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subtenant there under.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Manitex International, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter providedA. Tenant may not assign this Lease in whole or in part, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Leasenor sublet, or sublet permit the Premises use or any part hereof (eachoccupancy by a party other than Tenant of, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Premises, without Landlord’s the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this provision shall constitute a default hereunder and shall be void ab initio. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any parentsubsequent assignment or subletting. Landlord’s basis for such refusal may include, subsidiary without limitation, the fact that the proposed sublessee or affiliate of Tenant; assignee, or any party that results from a merger person or consolidation of Tenant; entity which directly or any party that acquires all indirectly, controls, is controlled by, or substantially all is under common control with, the proposed sublessee or assignee, either (i) occupies space in the Project at the time of the assets request for consent, or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred ii) is negotiating with Landlord or has negotiated with Landlord during the six (6) month period immediately preceding the date Landlord receives Tenant’s request for consent, to herein as a “Subject Transfer”). Notwithstanding lease space in the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2Project. In the event Tenant desires to effect a Transferassign this Lease or sublet, thenor permit such occupancy of, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to the Premises, or any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”)portion thereof, Tenant shall provide written notice thereof to Landlord at least sixty (60) days prior to the “Assignment Notice”) containing information (including references) concerning proposed commencement date of such subletting or assignment, which notice shall set forth the character name of the proposed transfereesubtenant or assignee, assignee the relevant terms of any sublease or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant assignment and the proposed transferee, assignee or sublessee; copies of financial reports and the consideration other relevant financial reports and all other material terms and conditions relevant financial information of the proposed Transfersubtenant or assignee.
B. If this Lease be assigned, all in or if the Premises or any part thereof be underlet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such detail assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as Landlord shall reasonably requireTenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained. Tenant shall reimburse Landlord pay as additional rents hereunder, any increase in the insurance for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing the Project directly attributable to Tenant’s assignment or Tenant’s assignee’s occupancy of the Premises. This prohibition against assignment or subletting shall be construed to include a prohibition against any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary, and a prohibition against any encumbrance of all and any part of Tenant’s leasehold interest.
C. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants and conditions hereof or any rents or other sums to be paid hereunder.
D. Upon any request to assign or sublet, Tenant will pay to Landlord, on demand, a sum equal to all of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and considering any proposed or purported assignment or pledge of this Lease or sublease of any of the Premises, regardless of whether Landlord shall consent to, refuse consent, or determine that Landlord’s consent is not required for, such assignment, pledge or sublease. Provided that Tenant promptly provides to Landlord all relevant information to consider such request, such payment to Landlord hereunder shall not exceed $2,000.00.
E. If the Tenant is a corporation whose shares are not publicly traded or is a partnership, if there shall be any change in the ownership of and/or power to vote the controlling interest of Tenant, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, same shall constitute an assignment of this Lease subject to Landlord’s consent as above provided.
F. Anything contained in the foregoing provisions of this Section to the contrary notwithstanding, neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such Transfer.
25.3. Landlorduse, occupancy or utilization based, in determining whether consent should be given to whole or in part, on the net income or profits derived by any person from the Premises leased, used, occupied, or utilized (other than an amount based on a proposed Subject Transfer, may give consideration to the financial strength fixed percentage or percentages of such transferee, assignee receipts or sublessee (notwithstanding Tenant remaining liable for Tenant’s performancesales), and any change in use that such transfereepurported lease, assignee sublease, license, concession or sublessee proposes to make other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use occupancy or utilization of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion part of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferG. Any purported sale, Landlord may require any or all assignment, mortgage, transfer of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer subletting of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall does not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance comply with the provisions of this Section 25 shall be void.
25.6. The consent by H. Tenant acknowledges and agrees that any and all right and interest of Landlord in and to a Transfer shall not relieve Tenant or proposed transfereethe Premises, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transferthe Project and the Property, nor shall it release Tenant or any proposed transferee, assignee or sublessee and all right and interest of Tenant from full and primary liability under Landlord in this Lease., may be conveyed, assigned or encumbered at the sole discretion of Landlord at any time, provided that such conveyance, assignment or encumbrance is subject to this Lease and the rights, privileges and easements granted herein..
25.7. Notwithstanding any Transfer, I. In the event Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or desires to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of assign this Lease or to sublease a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets portion of the Premises or any potion thereofPremises, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right and option to collect terminate this Lease, or the portion to be subleased for the proposed term of the sublease, which right or option shall be exercisable by written notice from Landlord to Tenant within thirty (30) days from the date Tenant gives Landlord written notice of its desire to assign or sublease. In the event Landlord elects not to terminate this Lease (within the time period described above), then such rentright shall be null and void. Additionally, Landlord agrees to waive such right of recapture in the event that Tenant shall have funded at least fifty percent (50%) of the initial cost of the build out of the Premises.
J. Notwithstanding the foregoing, Landlord’s consent shall not be required for any assignment or sublet to a validly existing entity controlling, controlled by, in common control with Tenant, nor to any entity that succeeds to Tenant’s interest in this Lease by reason of merger, or sale/acquisition of all or substantially all of the stock or assets), consolidation or reorganization; provided, however, with respect to an assignment or a sublease of all or substantially all of the Premises, such successor entity must (i) have a net worth comparable to Tenant as of the date of such assignment and/or sublet; and (ii) not conflict with any exclusive use granted to other tenants of the Project, or (iii) make any use of the Premises for other than the Permitted Use.
Appears in 1 contract
Samples: Lease Agreement (Applied Genetic Technologies Corp)
Assignment or Subletting. 25.130.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that condition or delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parentperson that as of the date of determination directly, subsidiary or affiliate indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant (“Tenant’s Affiliate”), or any person or entity that acquires all or substantially all of Tenant’s assets or all the capital stock or other ownership interest in Tenant; any entity with which Tenant merges, regardless of whether Tenant is the surviving entity; or any party that results from a merger person or consolidation of Tenant; or any party entity that acquires all or substantially all of the business or assets operated or stock located on the Premises (“Successor”); provided that such Successor assumes in writing all of Tenant’s obligations under the Lease and the Successor at the time of such Transfer shall have no less than Twenty-Five Million Dollars ($25,000,000) in cash or cash equivalent assets; and provided, further, that a Successor does not become a Successor for purposes of a sham or to evade the requirements of Applicable Laws or this Lease. Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of such Transfer to Tenant’s Affiliate or Successor (an “Allowable Exempt Transfer”). Any In the event the disclosure of such Exempt Transfer other than an Allowable Transfer shall be referred would violate Applicable Laws or involve the disclosure to herein as Landlord of material non-public information (a “Subject TransferConfidentiality Issue”), then Tenant shall notify Landlord of such Exempt Transfer within two (2) business days following its consummation, Tenant shall otherwise comply with the requirements of this Lease regarding such Exempt Transfer. Notwithstanding For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the foregoingstock or other equity interests of another person and (b) possessing, in no event shall Tenant be released from any directly or indirectly, the power to direct or cause the direction of its obligations under this Leasethe management and policies of such person.
25.230.2. In the event Tenant desires to effect a TransferTransfer other than an Exempt Transfer having a Confidentiality Issue, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.330.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 30.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.430.4. As conditions precedent to Tenant subleasing the Premises or to Landlord considering a request by Tenant for Landlord’s consent to a Subject TransferTenant’s transfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request not to exceed Two Thousand Five Hundred Dollars ($2,500) per request;
(d) If a Transfer Other than an Exempt Transfer, if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the PremisesPremises and improving the Premises in connection therewith) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below22.7), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.222.2.
25.530.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article 30 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.630.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.730.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.830.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 30.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 30.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.930.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
30.10. Notwithstanding anything to the contrary herein, Tenant may not Transfer this Lease, including as part of an Exempt Transfer, unless it concurrently Transfers the Office Lease to the same party in accordance with the terms of the Office Lease.
Appears in 1 contract
Samples: Lease (Revance Therapeutics, Inc.)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, with which Tenant is affiliated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity’s net worth and liquid assets are equal or stock greater than Tenant’s immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Section 25.1 and this Section 25.2 shall not be applicable if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange or electronic exchange such as NASDAQ.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor’s net worth and liquid assets are equal to or greater than Tenant’s immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, 25.7 If Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets sublet the Premises or any potion part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises, and appoints Landlord as assignee and attorney-in-fact for of Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) , may collect such rent and apply it toward Tenant’s obligations under this Lease; provided except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
25.8 If Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, any security deposit received from the subtenant, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord’s application, after an occurrence of an act of default by Tenant under the sublease, may use and apply the security deposit as provided in the sublease, and may apply any balance toward Tenant’s obligations under this Lease.
25.9 Notwithstanding any subletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.10 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord’s sole option, in the event of the termination of this Lease. Landlord and any lender shall upon Tenant’s request provide any subtenant of the entirety of the Premises with a recognition and nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease.
25.11 Except in connection with any assignment or subletting of the Premises as contemplated by Section 25.2, in the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such transfer and payable to third parties, and after Tenant has recouped any expenses incurred for tenant improvements to the transferred space constructed after the Term Commencement Date.
Appears in 1 contract
Samples: Lease Agreement (Salmedix Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily without the prior written consent of Landlord and Prime Landlord (Xxxxxxxx’s consent not to be unreasonably withheld),
(i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Xxxxxx’s request for Xxxxxxxx’s and Prime Landlord’s consent to any parent, subsidiary a proposed assignment or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer sublease shall be referred to herein as a “Subject Transfer”). Notwithstanding in writing and no proposed assignment or sublease by Tenant may be for less than the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2entire Premises. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect that Xxxxxx requests Xxxxxxxx’s and Prime Landlord’s consent to a sublease and at least proposed assignment or sublease, Landlord may instead elect to terminate this Sublease by written notice to Tenant within thirty (30) days with respect following Xxxxxx's written request for Xxxxxxxx's and Prime Xxxxxxxx’s consent to any other Transfer, but not more than ninety (90) days proposed assignment or sublease. If Landlord and Prime Landlord shall consent in any event, prior writing to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), a proposed assignment or sublease and Tenant shall provide written notice assign this Sublease or sublet the Premises, Landlord shall be entitled to Landlord and Tenant shall pay to Landlord, as Additional Rent, one hundred percent (100%) of all sums and other consideration paid to Tenant by the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; subtenant for or by reason of such assignment or sublease less the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable actual out-of-pocket costs expenses reasonably incurred by Landlord Tenant in reviewing Tenant’s request connection with such assignment or sublease on account of brokerage commissions, advertising expenses, legal fees, work contributions, the cost of work performed by Xxxxxx to prepare the Premises for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublesseesubtenant’s financial qualifications occupancy, and (b) Landlord may only consider all other costs and expenses incurred by Tenant in effecting such financial qualifications in assignment or sublease. Such Additional Rent shall be payable as and when received by Tenant from the event that, were the transfer, assignee or subtenant. No permitted assignment or sublease to occur, Tenant would no longer occupy will in any portion way affect or reduce any of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all obligations of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSublease.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease Agreement
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall notnot assign, either voluntarily or by operation of Applicable Lawstransfer, directly or indirectly sell, hypothecate, assignmortgage, pledge, hypothecate or encumber or otherwise transfer this Lease, or any interest therein, and Tenant shall not sublet the Premises or any part hereof (eachthereof, a “Transfer”)or any right or privilege appurtenant thereto, or suffer any other person to occupy or use the Premises, or any portion thereof, without Landlord’s the prior written consentconsent of the Landlord, which consent will not be unreasonably withheld. Without in any way limiting Landlord's right to refuse such consent in Xxxxxxxx's sole discretion, Landlord may not unreasonably withhold; provided, however, that Tenant shall have refuse to give such consent unless Xxxxxx remains fully liable during the right unexpired term of the Lease and Landlord further may refuse to assign all give such consent if in Xxxxxxxx's sole discretion and opinion the quality of tenancy is or may be in any portion way adversely affected during the term of its interest under this the Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character financial worth of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions new tenant is less than that of the proposed Transfer, all in such detail as Landlord shall reasonably requireTenant executing this Lease. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord Xxxxxx agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual 's reasonable attorney's fees and other costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection conjunction with the review, processing and documentation of any such request;
(d) If a Transfer requested assignment, transfer, subletting, change of ownership or hypothecation of this Lease or Xxxxxx's interest in and to the Premises. Any assignment consented to by Landlord shall in no way relieve or release Tenant from liability hereunder or from any of the Premises provides for the receipt byterms, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing covenants and subleasing the Premises) in excess of the rental and other charges due obligations required to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due performed by Tenant under this Lease, and any such proposed transferee, assignee or sublessee . This Lease shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfernot, nor shall it release Tenant or any proposed transfereeinterest herein, assignee or sublessee be assignable as an interest of Tenant from full and primary liability under this Lease.
25.7by operation of law, without the prior written consent of Landlord. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for In the payment of all Rent and other sums due or to become due hereunder, and for event the full performance of all other terms, conditions and covenants to premises should be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlordsublet, as security for Tenant’s obligations under this Leaseherein provided, all rent from any such sublettingat an increased rental, and appoints fifty percent (50%) of said increase shall be paid to Landlord by Tenant as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentadditional rental 20.
Appears in 1 contract
Samples: Commercial Lease (Sunrise Usa Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer or encumber this Lease, nor sublet all or sublet any part of the Premises or any part hereof (each, a “Transfer”), permit the same to be occupied or used by anyone other than Tenant or its employees without Landlord’s prior written consentapproval, which consent Landlord may agrees not unreasonably to withhold; provided. It will not be unreasonable for Landlord to withhold consent if the reputation, howeverfinancial responsibility, or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business not to be consonant with that Tenant shall have of other tenants in the right to assign all Building, or if the intended use by the proposed assignee or subtenant conflicts with any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect commitment made by Landlord to any other Transfertenant in the Building. Tenant’s request for approval shall be in writing and contain the name, but not more than ninety (90) days in any eventaddress, prior to and description of the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character business of the proposed transferee, assignee or sublessee; subtenant, its most recent financial statement and other evidence of financial responsibility, its intended use of the Assignment Date; any ownership or commercial relationship between Tenant Premises, and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in assignment or subletting. Within thirty (30) days from receipt of such detail as request Landlord shall reasonably require. either: (a) grant or refuse consent; or (b) elect to require Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing (i) to execute an assignment of lease or sublease of Tenant’s interest hereunder to Landlord or its designee upon the same terms and conditions as are contained herein, together with an assignment of Tenant’s interest as sublessor in any such proposed sublease, or (ii) if the request is for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transferassignment of this Lease, may give consideration to terminate this Lease and the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use term hereof effective as of the Premiseslast day of the third month following the month in which the request was received. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, Each assignee or sublessee of poor reputationTenant’s interest hereunder shall assume and be deemed to have assumed this Lease and shall be liable jointly and severally with Tenant for all payments and for the due performance of all terms, lacking financial qualificationscovenants, seeking a change in conditions and provisions herein contained on Tenant’s part to be observed and performed for the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4Premises assigned or sublet. As conditions precedent No assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an instrument in recordable form containing a covenant of assumption by the assignee, but the failure or refusal of an assignee to execute the same shall not release assignee from its liability as set forth herein. Tenant shall pay to Landlord’s consent to a Subject Transfer, Landlord may require any as Additional Rent hereunder, one hundred percent (100%) of all subrents or all of the following:
other sums or economic consideration received by Tenant (a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding after deducting Tenant’s reasonable costs in marketing and subleasing the Premises) of re-letting), whether denominated as rentals or otherwise, in excess of the rental and other charges due monthly sums which Tenant is required to Landlord pay under this Lease, Tenant . Any consent by Landlord hereunder shall pay twenty-five percent (25%) not constitute a waiver of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt strict future compliance by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to or a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of terms, covenants, provisions, or conditions in this Lease or a consent to any Transfercontained.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1Tenant may not transfer any of its rights under this Lease, voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, without the prior written approval of Landlord, which consent shall not be unreasonably withheld or delayed. Except as hereinafter providedWithout limiting the generality of the foregoing, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecatemay not sublease, assign, pledgemortgage, encumber encumber, permit the transfer of ownership or otherwise transfer this Leasecontrol of the business entity comprising Tenant, or sublet permit any portion of the Premises to be occupied by third parties without the prior written approval of Landlord, which consent shall not be unreasonably withheld or any part hereof (each, delayed . Consent by Landlord to a “Transfer”), without transfer shall not relieve Tenant from the obligation to obtain Landlord’s prior written consentconsent to any further transfer. Tenant and Guarantor shall remain fully liable for all obligations under this Lease following any such transfer. The joint and several liability of Tenant, which consent Guarantor, and any successor in interest of Tenant (by assignment or otherwise) under this Lease shall not in any way be affected by any agreement that modifies any of the rights or obligations of the parties under this Lease or any waiver of, or failure to enforce, any obligation under this Lease. Any transfer by Tenant in violation of this article shall, at Landlord’s option, be void. Landlord may shall be permitted to assign the Lease to any party, including a successor owner of the Unit in the event that Landlord elects to sell or convey the Unit provided that: (a) Landlord notifies Tenant of such transfer and all relevant information to serve notices to the successor in interest; and (b) Upon such assignment, all liabilities and obligations on the part of the Landlord under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner. Notwithstanding anything to the contrary contained herein, provided Tenant is not unreasonably withhold; providedin default hereunder beyond any applicable notice or cure period, however, that Tenant shall have the right right, upon giving prompt written notice to Landlord, to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant Affiliate (an “Allowable Transfer”as hereinafter defined). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event such assignment or subletting shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent Guarantor of their obligations to Landlord hereunder. The term "Affiliate" shall mean any further Subject Transfer, nor shall it release Tenant parent company or any proposed transferee, assignee subsidiary which controls or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed is controlled by Tenant. The acceptance term "control" shall mean ownership of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other not less than Tenant shall not be deemed a waiver of any fifty-one percent of the provisions voting rights attributable to the shares of this Lease or a consent to any Transferthe controlled company.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease to an entity into which Tenant is merged, with which Tenant is consolidated, or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets of Tenant, provided that the successor entity's net worth and liquid assets are equal or stock greater than Tenant's immediately prior to the assignment, and further provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, will consent to the assignment; provided however, Landlord's consent shall not be required if such transfers occur in no event shall Tenant be released from any of its obligations under this Leasea public stock exchange.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”"ASSIGNMENT DATE"), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”"ASSIGNMENT NOTICE") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to (i) the financial strength of such transfereesuccessor (but may not withhold consent on this ground if the successor's net worth and liquid assets are equal to or greater than Tenant's immediately prior to the assignment), assignee or sublessee (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), (ii) any use which such successor proposes to make of the Premises, and any change in use that such transferee, (iii) whether the proposed assignee or sublessee proposes to make in the use represents a potential risk of compromise of trade secrets of another tenant of the PremisesProject. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.4, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent. Furthermore, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, any security deposit received from the subtenant, which Landlord shall hold pursuant to the terms of the sublease. The security deposit shall be transferable by Landlord to a successor Landlord and to Landlord's mortgage lender which is the beneficiary of a deed of trust encumbering the Premises, provided such lender agrees to hold the security deposit pursuant to the terms of the sublease and this Lease.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.825.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord's sole option, in the event of the termination of this Lease. [Intentionally omitted]Landlord and any lender shall upon Tenant's request provide any sublessee of the entirety of the Premises with a recognition and nondisturbance agreement in the form described in Article 35 on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease. Any assignment of the Lease or sublease of the Premises shall provide that the assignee or sublessee shall provide financial statements to Landlord as reasonably required by present and prospective lenders and purchasers of the Project.
25.9. If 25.10 In the event Tenant assigns, hypothecates or otherwise transfer this Lease or sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns shall pay to Landlord, as security for Tenant’s obligations Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, all rent from after tenant has recouped any reasonable commissions and legal expenses occasioned by such sublettingtransfer and payable to third parties.
25.11 Notwithstanding any of the foregoing provisions to the contrary, in the event Tenant desires to assign this Sublease or sublet the entire Premises to a transferee other than to a transferee describe in Section 25.2, Landlord may elect to terminate this Lease by written notice given by Landlord to Tenant within fifteen (15) days following receipt of the Assignment Notice and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations the information required under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentSection 25.3.
Appears in 1 contract
Assignment or Subletting. 25.1Section 1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation without the prior written consent of Applicable LawsLandlord in each instance, directly or indirectly sell, hypothecate, assign, pledge, encumber (a) assign or otherwise transfer this LeaseLease or any of its rights hereunder, or (b) sublet the Premises or any part hereof (eachthereof, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have or permit the right to assign all use of the Premises or any portion part thereof by any persons other than Tenant or its employees, agents, and invitees, or (e) permit the assignment or other transfer of its interest under this Lease or sublet all or any portion of the Premises without Tenant’s rights hereunder by operation of law. Landlord’s consent to any parenta proposed assignment or sublease shall not be unreasonably withheld, subsidiary conditioned, or affiliate delayed. The parties acknowledge that Landlord’s refusal to consent shall be deemed not to have been unreasonably withheld if (i) the proposed assignee or subtenant is not of Tenant; a type and quality consistent with the first-class nature of the Building, (ii) the proposed assignee or subtenant does not have the financial capacity and credit worthiness to undertake and perform the obligations of this Lease or the sublease, (iii) the proposed assignee or subtenant is a governmental agency or any party that results from by whom any suit or action could be defended on the ground of sovereign immunity, (iv) the proposed assignee or subtenant is a merger or consolidation party with whom the Landlord is presently negotiating for the lease of Tenant; or any party that acquires all or substantially all of space in the assets or stock of Tenant Building, (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding v) the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character presence of the proposed transfereetransferee in the Premises would cause Landlord to be in violation of any other lease, assignee or sublessee; would trigger term rights by any other tenant, or (iv) the Assignment Date; any ownership space to be assigned or commercial relationship between Tenant sublet is not configured to allow appropriate means of ingress and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requireegress. Tenant shall reimburse furnish Landlord for all reasonable attorneys’ fees with such information about any proposed assignee or subtenant, its business, and other reasonable out-of-pocket costs incurred its financial condition as Landlord may reasonably request. All proposed subleases and assignments shall be in a form acceptable to Landlord. The consent by Landlord to any assignment, transfer, or subletting to any person or entity shall not be construed as a waiver or release of Tenant from any provision of this Lease, unless expressly agreed to in reviewing Tenant’s request writing by Landlord (it being understood that Tenant shall remain primarily liable as a principal and not as a guarantor or surety), nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant, or occupant constitute a waiver or release of Tenant from any such provision. No consent by Landlord to any such assignment, transfer, or subletting in anyone instance shall constitute a waiver of the necessity for such Transfer.
25.3. Landlord, consent in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premisessubsequent instance. In no event shall any consent by Landlord be deemed construed to be unreasonable for declining to consent to permit reassignment or resubletting by a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, permitted assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred . Upon any assignment of this Lease or any subletting in connection with the review, processing and documentation aggregate of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay more than twenty-five percent (25%) of the Premises, any and all option rights, renewal rights, rights of first refusal, and expansion rights, if applicable, shall terminate, at Landlord’s option, and be of no further force and effect, it being agreed that all such excess rights are personal to LandlordTenant (and not to any assignee or subtenant) and are not appurtenant to the Premises or this Lease.
Section 2. If Tenant assigns or sublets all or any portion of the Premises, prior Tenant shall pay to deductions for any transaction costs incurred Landlord as Additional Rent, as and when received by Tenant, including marketing expensesan amount equal to the difference between (a) all sums paid to Tenant or its agent by or on behalf of such assignee or subtenant under the assignment or sublease, tenant improvement allowancesand (b) the Monthly Base Rent, alterationsOperating Expenses, cash concessionsand Real Estate Taxes paid by Tenant under this Lease and attributable to the portion of the Premises assigned or sublet.
Section 3. In addition to the foregoing, brokerage commissionsif at any time and from time to time during the Term (and any extension thereof) Tenant notifies Landlord that Tenant desires to sublet all or any portion of the Premises (the “Proposed Sublet Space”), Landlord shall have the option of regaining possession of the Proposed Sublet Space and amend this Lease to exclude the Proposed Sublet Space from the Premises, and to effect a proportionate reduction in the Monthly Base Rent and Tenant’s Operating Expenses and Real Estate Tax Percentages. All other terms and conditions of this Lease shall remain in effect and applicable to the Premises as reduced, and Tenant shall execute documents to effect such amendment at Landlord’s request. If Tenant proposes to assign this Lease, or the Proposed Sublet Space comprises the entire Premises, Landlord shall also have the option to terminate this Lease. Landlord’s option to amend or terminate this Lease shall be exercisable by written notice to Tenant within thirty (30) days following Landlord’s receipt of a written notice that Tenant desires to assign this Lease or to sublease the specified Proposed Sublet Space. If Landlord timely exercises such amendment or termination option, such amendment or termination shall be effective as of the effective date of the assignment or subletting proposed by Tenant. If Landlord does not exercise its right to regain possession of the Proposed Sublet Space or to terminate this Lease (as applicable), Tenant shall be entitled to an acceptable assignee or subtenant for the Proposed Sublet Space, for a sublease term no longer than that set forth in Tenant’s notice. If such an assignee or subtenant acceptable to Landlord but not been found by Tenant and submitted for Landlord’s approval within one hundred and twenty (120) days from the date of Tenant’s most recent notice, Tenant shall not be entitled to enter into any assignment or sublease without first submitting a new notice to Landlord and affording Landlord an opportunity to exercise its right to amend or terminate this Lease as set forth above.
Section 4. For purposes of this Section, a transfer, conveyance, grant, or pledge, directly or indirectly, in one or more transactions, of an interest in Tenant (whether stock, partnership interest, or other form of ownership or control), or the issuance of new interests, by which an aggregate of more than twenty-five percent (25%) of the beneficial interest in Tenant shall be vested in a party or parties who are not holders of such interest(s) as of the date hereof shall be deemed an assignment of this Lease, provided; however, that this limitation shall not apply to any corporation, all the outstanding voting stock of which is listed on a national securities exchange, as defined in the Securities Exchange Act of 1934. The merger or consolidation of Tenant into or with any other entity, the sale of all or substantially all of Tenant’s assets, or the dissolution of Tenant, shall each be deemed to be an assignment within the meaning of this Section.
Section 5. Any assignment or subletting not in conformance with the terms of this Lease shall be void. Tenant shall pay to Landlord an administrative fee in the amount of Five Hundred Dollars ($500.00) and shall reimburse Landlord for its reasonable attorneys’ fees and free rentother third-party expenses incurred in reviewing any requested consent whether or not such consent is granted. If said consideration consists Tenant shall not collaterally assign, mortgage, pledge, hypothecate, or otherwise encumber this Lease or any of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant ’ rights hereunder without the prior written consent of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by consent Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, may withhold in its sole and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordabsolute discretion.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 13.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this LeaseLease or any interest in this Lease without the prior written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the Premises or to allow anyone to use or to come in, a “Transfer”), through or under the Premises without Landlord’s 's consent. Any attempted subletting or assignment without Landlord's consent shall be voidable in Landlord's sole discretion and, at Landlord's option, shall grant Landlord the right to terminate this Lease or to exercise any of the other rights or remedies it may have hereunder. If consented to, no assignment or subletting shall be binding upon Landlord unless the sublessee or assignee shall deliver to Landlord an instrument (in recordable form, if Landlord so requests) containing an agreement of assumption of all of Tenant's obligations under this Lease. In no event may Tenant assign, sublet or otherwise transfer this Lease or any interest in this Lease at any time while an Event of Default exists hereunder. Landlord may, in its sole discretion, refuse to give its consent to any proposed subletting or assignment or exercise its other rights hereunder for any reason, including, but not limited to, the financial condition, creditworthiness or business reputation of the proposed sublessee or assignee, the prevailing market or quoted rental rates for space in the Building or other comparable buildings, and the proposed use of the Premises by, or business of, the proposed sublessee or assignee. One consent by Landlord to a subletting or assignment will not be deemed a consent to any subsequent assignment, subletting, occupation or use by any other person. Neither the consent to any assignment or subletting nor the acceptance of rent from an assignee, subtenant or occupant will constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease. A dissolution, merger, consolidation, or other reorganization of Tenant and the issuance or transfer of twenty (20%) percent or more of the voting capital of Tenant to persons other than shareholders as of the beginning of such period within any twelve (12) month period, shall each be deemed to be an assignment of this Lease, and as such, prohibited without Landlord's prior written consent. Notwithstanding anything in this paragraph to the contrary, Landlord shall allow the occupancy of the Premises by Tenant's parent company or a subsidiary or an affiliate which consent Landlord may not unreasonably withhold; providedis wholly owned by Tenant (the "Related Entity"), however, that Tenant shall have or the right to assign all or any portion assignment of its interest under this Lease or sublet the subletting of all or any a portion of the Premises without Landlord’s consent to a Related Entity provided that: (i) Tenant shall give written notice to Landlord at least sixty (60) days prior to said proposed occupancy, assignment or subletting setting forth the terms thereof together with such financial and other information Landlord may request; and (ii) any parentsuch occupancy, subsidiary assignment or affiliate subletting shall not constitute a release of Tenant; or any party that results Tenant from a merger or consolidation of Tenant; or any party that acquires all or substantially all the further performance of the assets or stock obligations of Tenant contained in this Lease; and (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer iii) any such occupancy, assignment or subletting shall be referred subject to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this LeaseSections 13.03 and 13.04.
25.2. 13.02 In the event Tenant desires to effect sublet all or a Transferportion of the Premises or assign this Lease, thenTenant shall give notice to Landlord setting forth the terms of the proposed subletting or assignment together with such financial and other information Landlord may request. Landlord shall have the right, at least twenty (20) days with respect exercisable by written notice to a sublease and at least Tenant within thirty (30) days after receipt of Tenant's notice, (i) to consent or refuse to consent thereto in accordance with respect Paragraph 13.01 above, or (ii) to any other Transferterminate this Lease which termination may, but not more than ninety (90) days in any eventLandlord's sole discretion, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to conditioned upon Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, subtenant/assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requireentering into a new Lease. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatHowever, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under desires to elect to terminate this Lease, such proposed transferee, assignee or sublessee it shall thereafter make all payments otherwise due first notify Tenant directly to of its desire whereupon Tenant may withdraw the request within ten (10) days after Landlord, which payments shall be received 's notice by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn the delivery of written withdrawal thereof to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) whereupon Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) withdraw its recapture option and Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability remain fully obligated under this Lease.
25.7. Notwithstanding any Transfer13.03 Upon the occurrence of an Event of Default, Tenant shall remain fully and primarily liable for the payment of as defined under Section 18, if all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunderpart of the Premises are then sublet or assigned, or the acceptance of performance of Landlord, in addition to any other termremedies provided by this Lease or by law, covenant may, at its option, collect directly from the sublessee or condition thereof, assignee all rent becoming due to Landlord by reason of the subletting or assignment. Any collection by Landlord from any person the sublessee or entity other than Tenant assignee shall not be deemed construed to constitute a waiver or release of any Tenant from the further performance of the provisions of its obligations under this Lease or the making of a consent to any Transfernew Lease with such sublessee or assignee.
25.8. [Intentionally omitted]
25.9. If 13.04 In the event Tenant sublets shall sublet all or a portion of the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under assign this Lease, all of the sums of money or other economic consideration received by Tenant or its affiliates, directly or indirectly, as a result of such subletting or assignment, whether denominated as rent from any or otherwise, which exceed in the aggregate the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such subletting, and appoints sublease) shall be payable to Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such additional rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence Lease without effecting or reducing any other obligation of a Default by Tenant, Tenant shall have the right to collect such renthereunder.
Appears in 1 contract
Samples: Lease (Sun Communities Inc)
Assignment or Subletting. 25.1. A. Except as hereinafter providedotherwise provided in subparagraph C below, Tenant shall not, either directly or indirectly, voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecateinvoluntarily, assign, pledge, encumber encumber, or otherwise transfer this LeaseLease or any interest therein, or and shall not sublet the Premises or any part hereof thereof or any right or privilege appurtenant thereto, or permit any other person (eachthe authorized representatives of Tenant excepted) to occupy or use the Premises or any portion thereof (collectively, a “Transfer”), ) without first receiving the written consent of Landlord’s prior written consent, which consent Landlord may shall not be unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises withheld. Any such Transfer without Landlord’s consent shall be void and shall, at the option of Landlord, constitute a Default hereunder entitling Landlord to terminate this Lease and giving rise to all other remedies available to Landlord for breach of this Lease. A consent to one Transfer shall not be deemed to be a consent to any parent, subsidiary other or affiliate of Tenant; or further Transfer. This Lease and any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of interest in it shall not be Transferable as to the assets or stock interest of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding by operation of law without the foregoing, in no event shall Tenant be released from any prior written consent of its obligations under this LeaseLandlord.
25.2. B. In the event Tenant desires to effect contemplates a Transfer, then, Tenant shall give Landlord at least twenty forty (2040) days with respect days’ notice-thereof, designating the terms proposed and, if a sublease, the term thereof and space proposed to be sublet. Tenant shall also provide a sublease and at least current financial statement of any proposed assignee or subtenant. Landlord shall, by notice to Tenant given within thirty (30) days after receipt of Tenant’s notice either approve or disapprove Tenant’s proposal, with respect any such approval subject to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide Landlord’s subsequent written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character approval of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship specific agreement between Tenant and the proposed transfereeTransferee, and which agreement shall require, among other things, that the sublease or assignee or sublessee; and maintain insurance for the consideration and all other material terms and conditions benefit of Landlord in accordance with Article 12 hereof. Landlord will respond to any notice of proposed Transfer within thirty (30) days following Tenant’s delivery to Landlord of such notice. If Landlord fails to timely respond to Tenant’s submission which includes the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurdocument, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to may send a Subject Transfer, Landlord may require any or all of the following:
second (a2nd) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlordnotice must contain the following inscription, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
bold faced lettering: “SECOND NOTICE DELIVERED PURSUANT TO PARAGRAPH 28.B OF LEASE — FAILURE TO TIMELY RESPOND WITHIN FIVE (f5) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.BUSINESS DAYS SHALL RESULT
Appears in 1 contract
Samples: Lease (Colonnade Acquisition Corp.)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (eachiv) permit the occupancy of the Premises or any part thereof by anyone other than Tenant. Transfers of fifty percent (50%) or more of the stock or other ownership interests in Tenant, whether in one transaction or in the aggregate, shall be deemed to be an assignment of this Sublease. The preceding sentence shall not apply to shares of stock in Tenant sold to the public in an initial public offering, or to transfers of shares publicly traded in a “Transfer”), without recognized securities exchange or over-the-counter market. Subject to the provisions of the Prime Lease and Prime Landlord’s prior written consentrights thereunder, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right same rights as are available to Landlord pursuant to Sections D(1), D(2) and F of Article 41 of the Prime Lease, which provisions are incorporated herein by reference and shall be deemed to apply to transactions by Tenant. If Tenant desires to assign its interest in this Sublease, or further sublet all or any portion part of its interest under the Premises, then Tenant shall submit a written request to Landlord accompanied by such financial and other information concerning the proposed assignee or subtenant, and the terms of the assignment or further sublease, as Landlord may reasonably request. Any such request made by Tenant to assign this Lease Sublease or sublet enter into a further sublease of all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as deemed an offer by Tenant which shall be irrevocable for a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any period of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfersurrender all of the Premises to Landlord. If such offer is accepted, but not more than ninety (90) days in any event, prior to such surrender shall be effective as of the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of that the proposed transferee, assignee assignment or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably requirefurther sublease would have commenced. Tenant shall reimburse Landlord for quit and surrender the Premises as if this Sublease by its terms expired on such date, and the Base Rent and Additional Rent under Section 8 shall be apportioned as of such date. If Xxxxxx’s offer to surrender the Premises in connection with a proposed assignment or further sublease of all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred or a portion of the Premises is not accepted by Landlord in reviewing Tenantwithin thirty (30) days, or if Landlord declines such offer, then Xxxxxxxx’s request for consent to such Transfer.
25.3. Landlord, in determining whether consent should be given to an assignment of this Sublease or such a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use further sublease of the PremisesPremises shall not be unreasonably withheld. In no event shall If Landlord be deemed consents to be unreasonable for declining to consent to a Transfer to a transferee, assignee any assignment of this Lease or sublessee further subletting of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, all or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises, Landlord shall request the consent of Prime Landlord and deliver to Prime Landlord any information that Tenant submits in connection with its proposal to assign or sublet.
25.4B. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any defaults by Tenant hereunder shall have been cured. As conditions precedent No permitted assignment or subletting shall relieve Tenant from Tenant’s obligations and agreements hereunder and Tenant shall continue to Landlordbe liable as a principal and not as a guarantor or surety to the same extent as though no assignment or subletting had been made (unless Landlord shall have accepted a surrender of the Premises pursuant to Section 12(A) above).
C. The consent of Landlord or Prime Landlord to an assignment or a subletting shall not relieve Tenant from its obligation to obtain the express consent in writing of Landlord and Prime Landlord to any other assignment or subletting.
D. If Tenant’s consent to a Subject Transferinterest in this Sublease is assigned, or if the Premises or any part hereof is sublet or occupied by anyone other than Tenant, Landlord may require any collect rent from the assignee, subtenant or occupant and apply the net amount collected to the Base Rent and all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includeAdditional Rent herein reserved, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of but no such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Leasesubletting, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord occupancy or collection shall be made upon receipt by Tenant deemed a waiver of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant 12 or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to of any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, default hereunder or the acceptance of performance of any other termthe assignee, covenant subtenant or condition thereofoccupant as Tenant, from any person or entity other than Tenant shall not be deemed a waiver release of any of the covenants, conditions, terms and provisions on the part of this Lease Tenant to be performed or a consent to any Transferobserved.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 8.2.1 All assignments of this Lease or sublease or subleases of the Premises by Tenant or occupancy of all or part of the Premises by anyone other than Tenant shall notbe subject to and in accordance with all of the provisions of this Section.
8.2.2 Tenant may not assign this Lease or sublet the Premises, either voluntarily in whole or in part, to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld.
8.2.3 Any assignment or sublease by operation Tenant shall be only for the permitted Use, and for no other purpose, and in no event shall any assignment or sublease of Applicable Laws, directly the Premises release or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer relieve Tenant from any obligations of this Lease, .
8.2.4 In the event that Tenant shall seek Landlord's permission to assign this Lease or sublet the Premises or any part hereof allow additional occupants, Tenant shall provide to Landlord the name, address, financial statement and business experience resume for the immediately preceding ten (each, a “Transfer”), without Landlord’s prior written consent, which consent 10) years of the proposed assignee or subtenant or occupant and such other information concerning such proposed assignee or subtenant or occupant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than thirty (30) days prior to the effective date of the proposed assignment or sublease or occupancy. It shall be a condition to any consent by Landlord to an assignment or sublease or occupancy that Tenant shall pay to Landlord a processing fee in the amount of $125.00 or one percent (1%) of the annual current value of this Lease, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease or occupancy-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord's consent. Any consent by Landlord to any assignment or sublease or occupancy, or to the operation of a concessionaire or licensee, shall not unreasonably withhold; providedconstitute a waiver or the necessity for such consent to any subsequent assignment or sublease or occupancy, or operation by a concessionaire or licensee.
8.2.5 If Tenant is a corporation or partnership and any transfer, sale, pledge or other disposition of more than _______________/ JK LANDLORD TENANT fifty percent (50%) of the common stock or partnership interests shall occur, or voting control or power to vote the majority of the outstanding capital stock or partnership interests be changed, such action shall be deemed an assignment under the terms of this Lease and shall be subject to all the terms and conditions thereof provided , however, that Tenant shall have the right to assign all or any portion a public offering of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or capital stock of Tenant (shall not be deemed an “Allowable Transfer”)assignment for the purposes of this section. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default under the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the Premises for rentals in excess proportionately of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any consideration for any assignment of this Lease shall be paid to Landlord. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee assignment or sublessee; the Assignment Date; sublease. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except So long as hereinafter providedno Tenant Default shall have then occurred and be continuing, Tenant shall notand subject to the terms and limitations set forth below, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all the Premises (to no more than three (3) subtenants in the aggregate at any one time) or any portion thereof only with the prior written consent of Lessor, which consent shall not be unreasonably withheld if (i) as to an assignment or as to a sublease of more than 30,000 square feet, the Premises without Landlord’s consent proposed assignee or subtenant is reasonably creditworthy, (ii) the proposed assignee or subtenant assumes, in a written assumption agreement in form and substance acceptable to any parentLessor in its commercially reasonable discretion, subsidiary Tenant's obligations hereunder (as to subtenants, excluding the obligation as to pay Base Rent or affiliate Additional Rent) and otherwise agrees to be bound by the terms hereof, from and after the date of Tenant; or any party that results from a merger or consolidation assignment of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)this Lease. Notwithstanding the foregoing, in under no event shall circumstances will Tenant be released from any of obligations hereunder, nor will Guarantor be released from its obligations under the Lease Guaranty, upon any such assignment or sublease, including without limitation any "Intracorporate Transfer" or space sharing arrangement as contemplated below in this Section 24. Should Tenant sublease in accordance with the terms of this Lease, any increase in rental received by Tenant over the per square foot rental rate which is being paid by Tenant (after reimbursement to the Tenant of reasonable costs incurred in consummating such sublease, including, without implied limitation, attorneys' fees, brokerage commissions and the cost of making changes by reason thereof in the Premises such commissions and costs of changes in the Premises to be amortized of the term of occupancy of the Premises by the assignee or sublessee) shall be forwarded to and retained by Lessor, which increase shall be in addition to the Base Rent and Additional Rent due Lessor under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Office/Warehouse Lease (Manufacturers Services LTD)
Assignment or Subletting. 25.1. 9.1 Except as hereinafter providedwith the prior written consent of Sublandlord, Tenant which consent shall notnot be unreasonably withheld (and the consent of Master Landlord if required by the Master Lease), either voluntarily Subtenant shall not voluntarily, involuntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, law (a) assign, pledge, encumber convey or otherwise mortgage this Sublease or any interest under it; (b) allow any transfer this Lease, thereof or any lien upon Subtenant’s interest by operation of law; (c) further sublet the Sublease Premises or any part hereof thereof; or (eachd) permit the occupancy of the Sublease Premises or any part thereof by anyone other than Subtenant or a Permitted Transferee (as defined in Section 9.3 below) (collectively, a “Transfer”), without Landlord’s . Subtenant shall provide Sublandlord with not less than thirty (30) days prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or notice of a proposed Transfer. With any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s request for consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, thenSubtenant will submit a copy of the proposed Transfer document to Sublandlord and notify Sublandlord of the proposed effective date of the Transfer, at least the name of the proposed transferee (accompanied by evidence of the nature, character, ownership, business, and financial condition of the transferee and its business), all terms and conditions (including rental and other consideration) of or relating to the Transfer and a general description of any proposed alterations. Sublandlord shall grant or deny its consent to the proposed Transfer within a commercially reasonable time following submission of Subtenant’s request accompanied by the information required herein, but in any event not later than twenty (20) days with respect to a sublease and at least thirty (30) days with respect following such submission. Consent by Sublandlord to any other Transfer shall not be a waiver of Sublandlord’s rights as to any subsequent Transfer, but not more than ninety (90) days in any event, prior . Any approved Transfer shall be expressly subject to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Master Lease. Upon Default while a Transfer is in effect, Sublandlord may collect directly from the transferee all sums becoming due to Subtenant under the Transfer and apply this amount against any sums due Sublandlord by Subtenant, and Subtenant hereby authorizes and directs any transferee to make payments directly to Sublandlord upon notice from Sublandlord. No direct collection by Sublandlord from any transferee shall constitute a novation or release of Subtenant, a consent to the Transfer or a waiver of the covenant prohibiting Transfers. In the event that Subtenant shall request Sublandlord’s consent to a Transfer, all in such detail as Landlord Subtenant shall reasonably require. Tenant shall reimburse Landlord for all reasonable pay Sublandlord’s processing costs and attorneys’ fees and other reasonable out-of-pocket costs incurred by in reviewing such request, together with the fees and costs of Master Landlord in reviewing Tenant’s request for such Transferaccordance with the terms of the Master Lease.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give 9.2 If the consideration to the financial strength of such transferee, assignee or sublessee Subtenant receives for any Transfer (notwithstanding Tenant remaining liable for Tenant’s performance), including key money and bonus money and any change payment in use that such transferee, assignee excess of fair market value for services or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee assets provided or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred transferred in connection with the review, processing Transfer) exceeds the rent payable under this Sublease for the same period and documentation of such request;
(d) If a Transfer portion of the Premises provides for the receipt bySublease Premises, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five then fifty percent (2550%) of all of such the excess shall be immediately due and payable by Subtenant to LandlordSublandlord as Other Charges under this Sublease. Subtenant may deduct from the excess, prior to deductions for any transaction costs on a straight-line basis, the following reasonable and customary expenses directly incurred by TenantSubtenant attributable to the Transfer: (a) any alterations and tenant improvements, including marketing expenses, (b) tenant improvement allowances, alterations, cash concessions, (c) any brokerage commissions, (c) any attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leasecosts, and (d) any such proposed transferee, assignee or sublessee processing costs and fees payable to Sublandlord and Master Landlord pursuant to Section 9.1 above. Subtenant shall agree allow Sublandlord to attorn to Landlord or its successors review and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlordaudit Subtenant’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any book and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable records for the payment purpose of all Rent and other sums due or verifying Subtenant’s calculation of excess rent payable to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any TransferSublandlord.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Sublease (Onyx Pharmaceuticals Inc)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not to be unreasonably withhold; providedwithheld, however, that Tenant shall have the right to assign all conditioned or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”)delayed. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 29.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Infinity Oil & Gas Co)
Assignment or Subletting. 25.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that delay. Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises Transfer without Landlord’s prior written consent the Premises or any part hereof to any parent, subsidiary or affiliate of Tenant; or any party person that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all as of the assets date of determination and at all times thereafter directly, or stock indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Tenant (“Tenant’s Affiliate”), provided Tenant shall notify Landlord in writing at least ten (10) days prior to the effectiveness of Tenant such Transfer to Tenant’s Affiliate (an “Allowable Exempt Transfer”)) and otherwise comply with the requirements of this Lease regarding such Transfer. Any Transfer For purposes of Exempt Transfers, “control” requires both (a) owning (directly or indirectly) more than fifty percent (50%) of the stock or other than an Allowable Transfer shall be referred equity interests of another person and (b) possessing, directly or indirectly, the power to herein as a “Subject Transfer”). Notwithstanding direct or cause the foregoing, in no event shall Tenant be released from any direction of its obligations under this Leasethe management and policies of such person.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided Internal Revenue Code of 1986. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (“Revenue Code”); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.4. As conditions precedent to LandlordTenant subleasing the Premises or to Landlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowancesallowances actually provided by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 25.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section 25.8, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.9. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Cytrx Corp)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall notnone of the following (each, a “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), performed without Landlord’s prior written consent (which consent, which consent Landlord may subject to the terms of this Article, shall not be unreasonably withhold; providedwithheld, howeverconditioned or delayed): (a) Tenant selling, that Tenant shall have the right to assign all hypothecating, assigning, pledging, encumbering or any portion of its interest under otherwise transferring this Lease or sublet all or any portion of subletting the Premises without Landlord’s consent to any parentor (b) a controlling interest in Tenant being sold, subsidiary assigned or affiliate otherwise transferred (other than as a result of Tenant; or any party that results from shares in Tenant being sold on a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or public stock of Tenant (an “Allowable Transfer”exchange). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in ++++ In no event shall Tenant be released from any of its obligations under this Leaseperform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord to lease premises at the Project if Landlord has comparable space available for lease at the Project.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character business and experience of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant Within fifteen (15) days after receipt of a Transfer Notice, Landlord shall reimburse either (a) reasonably withhold its consent to the Transfer and state in reasonable detail the grounds therefor or (b) consent to the same. If Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by has not denied consent as provided in the preceding sentence within such fifteen (15) day period, Landlord in reviewing Tenant’s request for such Transferwill be deemed to have consented.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.7 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease and Guarantor shall remain fully liable under the Guaranty during the unexpired TermTerm and after the Term with respect to any provisions that survive the expiration or earlier termination thereof. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) [Intentionally omitted]
(c) ++++
(d) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(ce) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such requestrequest (provided that Tenant shall not be required to reimburse costs and expenses in an amount that exceeds Three Thousand Five Hundred Dollars ($3,500) per transaction);
(df) If a Transfer ++++ if Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions from such excess for any transaction costs incurred by Tenant, including all reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(eg) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fh) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s commercially reasonable forms;
(gi) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of any material non- monetary obligation under this Lease of which Tenant has been given received written notice by Landlord.or any monetary obligation under this Lease in any respect;
(hj) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ik) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jl) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(ko) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.729.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.7. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee or assignee or to sublease any portion of the Premises to any sublessee for seventy-five percent (75%) or more of the remainder of the Term, other than pursuant to an Exempt Transfer or as provided within Section 29.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) business days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof with respect to the space subject to the Transfer Notice (in which event Base Rent and Additional Rent shall be adjusted to reflect the revised rentable square footage of the Premises less the rentable square footage of the space subject to the Transfer Notice). If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) business days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.8. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee may, after the occurrence of a Default (and attorney-in-fact for Tenantwhile the same remains uncured), and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1This Lease may not be assigned nor may the Premises or any portion thereof be sublet without the express written approval of Lessor. Except as hereinafter provided, Tenant It is specifically understood that any such assignment or subletting shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not release Lessee from its obligations hereunder.
A. Lessee Request—Lessee may request that it be allowed to assign this Lease, Lease or sublet the Premises by addressing a request to Lessor in writing at least fifteen (15) days prior to the proposed commencement date of the sublease or any part hereof assignment. Lessee’s request shall include, as applicable:
(each, 1) the name and address of the proposed sublease or assignee; (2) the current credit rating and financial statements for the most recent three annual periods of the proposed sublessee or assignee; (3) a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have description and drawing of the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective sublet; (4) the “Assignment Date”), Tenant shall provide written notice rent to Landlord be paid by such sublessee or assignee; (5) a description of and documentation evidencing all the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail subletting or assignment of lease; and (6) any other information as Landlord Lessor may request. Lessor shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfernot unreasonably withhold its consent to any proposed assignment or sublease.
25.3. LandlordB. In addition to any other conditions applicable to the proposed assignment or subletting, Lessor may also consider in determining whether it will consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the followingsublease:
(a1) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of whether Lessee has operated the Premises provides for at least one year under the Trade Name and for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing Permitted Use and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant neither has been nor is not then in Default under this Lease, such .
(2) whether occupancy by the proposed transferee, sublessee or assignee will be consistent with the dignity and character of the Project and will not be more objectionable or more hazardous than that of Lessee;
(3) the financial standing of and whether the proposed assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlordhas sufficient prior experience in similar retail operations;
(4) in the case of a nationally known Lessee, which payments whether the subletting or assignment shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant a Lessee who is a nationally known manufacturer of consumer products of comparable quality to that of Lessee;
(5) whether the proposed sublease will be expressly subject to all of the obligations of Lessee under this Lease, and any such proposed transferee, assignee shall specifically provide that there shall be no further subletting of the Premises or sublessee shall agree to attorn to Landlord assignment or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornmentmortgaging of the sublease;
(f6) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist whether the proposed sublease or assignee is not already a Lessee, sublessee or assignee of any Premises within the Project, or that there is no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordunleased comparable space in the Project.
(h7) Such whether the proposed transferee, assignee use in connection with the assignment or sublessee’s use of sublease is the Premises shall not require any change to same as the Permitted Use;
(i) Landlord shall Use or, if not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any , is compatible with the uses and all written instruments evidencing or relating to Lessee mix then existing within the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below)Project, certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store will not otherwise be in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance violation of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of exclusive right then in existence at the provisions of this Lease or a consent to any TransferProject.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease Agreement (Sancilio Pharmaceuticals Company, Inc.)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised Premises or any part hereof (eachhereof, a “Transfer”)or permit or suffer the Demised Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord may shall be deemed to have acted reasonably in withholding its consent if, inter alia, the proposed use of the Demised Premises by the proposed assignee or subtenant is substantially more hazardous and burdensome than the Permitted Use (or, if more burdensome, than the present use by Tenant and/or any affiliate thereof in other locations leased by Tenant or any affiliate of Tenant from Landlord or any affiliate of Landlord) or if the net worth of the proposed assignee or subtenant (in the case of a proposed sublease covering more than fifty percent (50%) of the Demised Premises) is less than Three Million Dollars ($3,000,000).
25.2 If Tenant is a corporation, the shares of which are not unreasonably withhold; providedtraded upon a stock exchange or in the over-the-counter market, howevera transfer or series of transfers whereby fifty (50%) or more of the issued and outstanding shares of such corporation are or the voting control is transferred (but excepting transfers upon deaths of individual shareholders) from a person or persons or entity or entities (or affiliates thereof) which were owners or warrant holders thereof (or affiliates of such owners or warrant holders) at the time of execution of this Lease to persons or entities who were not owners of shares or holders of warrants of the corporation (or affiliates of such owners or warrant holders) at the time of execution of this Lease (or to any persons or entities who are not then affiliates of any such original owners, that holders or other affiliates) shall be deemed an assignment of this Lease requiring the consent of Landlord as provided in Section 25.1 above. The foregoing shall not apply to transfers among stockholders existing at the time of such transfer, nor to transfers from any such holders to affiliates, family members, spouses or employees thereof, nor to any transfer pursuant to which all or a substantial amount of the transferred shares are intended to be transferred or thereafter traded on a public exchange (including in the so-called over-the-counter market).
25.3 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant Tenant, provided that the assignee first executes, acknowledge and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease and that the assignee shall have a net worth (an “Allowable Transfer”determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to Three Million Dollars ($3,000,000) (as so determined). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the , then Landlord, upon receipt of proof of foregoing, in no event will consent to the assignment. The provisions of Sections 25.4, 25.5, 25.6 and 25.10 shall Tenant not be released from any applicable to assignments of its obligations under this LeaseLease pursuant to this Section 25.3.
25.2. 25.4 In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Demised Premises, then at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transferbusiness days, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant or refuse such consent in its reasonable discretion as provided in Sections 25.1 and 25.5 (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease or assignment prior to the effective date of any such subletting or assignment), or (ii) terminate this Lease in accordance with Section 25.10 with respect to the space described in the Assignment Notice as of the Assignment Date. Tenant shall also reimburse Landlord for all any, reasonable attorneys’ attorneys fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord (not to exceed $2,000.00 for any one request) in reviewing Tenant’s request for such Transferassignment.
25.3. Landlord, 25.5 Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the financial strength of such transferee, the proposed subtenant (in the case of a proposed sublease covering more than fifty percent (50%) of the Demised Premises) or assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that which such transferee, subtenant or assignee or sublessee proposes to make in the use of the PremisesDemised Premises and any desire of Landlord to exercise any rights under Section 25.10 to terminate this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, subtenant or assignee or sublessee of poor reputation, lacking financial qualificationsqualifications (in the case of a proposed sublease, only if the proposed sublease covers more than fifty percent (50%) of the Demised Premises), or seeking a change in use, subject to Section 10.1 hereby, which would reduce the Permitted Use, or jeopardizing directly or indirectly the status number of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion square feet of the PremisesDemised Premises used for laboratories (including vivarium rooms) below the level as of the Delivery Date.
25.4. 25.6 As conditions precedent to LandlordLandlord considering a request by Tenant to Tenant’s consent to a Subject Transfertransfer of rights or sharing of the Demised Premises, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting concerning the relevant business experience and experience, financial responsibility and status of the proposed transferee, assignee or sublesseethird party concerned;
(c) Tenant shall reimburse Landlord for Landlord’s actual reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements (not to exceed $2,000.00 for any one request) incurred in connection with the review, processing processing, documentation and documentation approval or disapproval of such request;
(d) If a Transfer Tenant’s transfer of rights or sharing of the Demised Premises provides for results in the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without but not by way of limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of said excess to Landlord (after deduction from such excess to Landlord, prior to deductions for any transaction all costs and expenses incurred by TenantTenant in connection with any assignment or sublease, including marketing expensesincluding, tenant improvement allowanceswithout limitation, alterations, cash concessions, brokerage commissions, attorneys’ fees advertising and free rentlegal fees). If said consideration consists of cash paid to Tenant, Tenant said payment to Landlord shall be made upon receipt by Tenant of such said cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, Written agreement from any third party concerned that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in an Event of Default has occurred under this Lease, such proposed transferee, assignee or sublessee third party shall thereafter make all payments otherwise due Tenant directly to LandlordLandlord for so long as such Event of Default remains uncured, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, however that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any such transfer and consent to such Transfer shall be effected on Landlord’s formsforms reasonably satisfactory to Landlord and Tenant as to form and substance;
(g) There No Event of Default shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to Tenant’s transfer of rights or sharing of the Transfer, except for Landlord’s written consent to the sameDemised Premises;
(ji) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to Tenant’s transfer of rights or sharing of the TransferDemised Premises; and
(kj) A list of Hazardous Materials Material (as defined in Section 39.7 40.6 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Demised Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Demised Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.240.1.1 below.
25.5. 25.7 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Demised Premises that is not in compliance with the provisions of this Section Article 25 shall be voidconstitute an Event of Default if any such non-complying sale, assignment, hypothecation or transfer is not rescinded within ten (10) days after Tenant’s receipt of notice from Landlord.
25.6. 25.8 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Demised Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, assignment or subletting nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this the Lease.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting, assignment or other transfer of the Demised Premises.
25.8. [Intentionally omitted]
25.925.10 If Tenant delivers to Landlord an Assignment Notice indicating a desire to assign this Lease to a transferee pursuant to a transaction requiring Landlord’s consent hereunder, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within fifteen (15) business days after Landlord’s receipt of the Assignment Notice, to terminate this Lease as of the date specified in the Assignment Notice as the Assignment Date. If Landlord exercises such option, then Tenant sublets shall have the Premises or any potion thereofright to withdraw such Assignment Notice by delivery to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise such option to terminate. In the event Tenant withdraws the Assignment Notice as hereinabove provided, this Lease shall continue in full force and effect as if such Assignment Notice had never been given. In the event Tenant hereby immediately and irrevocably assigns to Landlorddoes not so withdraw the Assignment Notice as hereinabove provided, as security for Tenant’s obligations under this Lease, all rent from and the term and estate herein granted, shall terminate as of the Assignment Date. No failure of Landlord to exercise any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on option to terminate this Lease shall be deemed to be Landlord’s application) may collect such rent consent to the proposed assignment, sublease or other transfer.
25.11 None of the terms of this Section 25 shall apply to any sublease between Tenant and apply it toward Tenant’s obligations under this Lease; provided thatany affiliate or subsidiary of Tenant nor to any arrangements (whether designated subleases, until the occurrence licenses or otherwise), other than assignments, between Tenant and any person with whom Tenant or any affiliate or subsidiary of a Default by TenantTenant has any scientific collaboration, joint venture, licensing arrangement or other similar relationship. In addition, Tenant shall have the right to collect assign this Lease to a subsidiary or affiliate of Tenant provided that Tenant shall unconditionally guaranty all obligations of such rentassignee.
25.12 Any consent, approval or other action required of Landlord under this Article 25 and not received by Tenant within fifteen (15) business days following Tenant’s written request therefor shall be deemed granted and/or waived as the case may be in accordance with the terms of the Assignment Notice.
Appears in 1 contract
Samples: Lease Agreement (Gene Logic Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot assign this Lease or any interest in it, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or and shall not sublet the Premises or any part hereof (eachof it or any right or privilege appurtenant to this Agreement or permit any other person, a “Transfer”)the agents and servants of Tenant excepted, without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have to occupy or use the right to assign all Premises or any portion of its interest under it without first receiving the written consent of Landlord. Landlord agrees not to unreasonably withhold such consent but may, in lieu of granting such consent, terminate this Lease or sublet all or any portion of the Premises without Landlord’s Lease. A consent to any parentone assignment, subsidiary subletting, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer occupation and use by another person shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to a consent to a Transfer to a transfereeany other or further assignment, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usesubletting, or jeopardizing directly occupation, nor a waiver of the provisions of this section, except as to the specific instance covered by it. Any such assignment, subletting, or indirectly occupation without consent shall be void and shall at the status option of Landlord or terminate this Lease. This Lease and any interest in it shall not be assignable as to the interest of Tenant by operation of law without the written consent of Landlord’s affiliates as a Real Estate Investment Trust under .
B. Any transfer of shares or other ownership interests by Tenant by reason of which the Code; provided that present shareholders or other equity holders own less than fifty-one percent (a51%) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesoutstanding equity of Tenant or a surviving entity shall constitute an assignment of this Lease subject to the provisions limiting assignment.
25.4. As conditions precedent to Landlord’s consent to a Subject TransferC. Except as otherwise expressly provided in this Lease, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under on this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease and shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee released from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of performing any of the provisions terms, covenants, and conditions of this Lease by reason of any assignment or a consent to any Transfersublease.
25.8. [Intentionally omitted]
25.9. If D. Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s 's obligations under this Lease, all rent from any such sublettingsubletting of all or a part of the Premises as permitted by this Lease, and appoints Landlord Landlord, as assignee and as attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s 's application) , may collect such rent and apply it toward Tenant’s 's obligations under this Lease; provided , except that, until the occurrence of a Default an act of default by Tenant, Tenant shall have the right to collect such rent.
E. In no event shall Tenant assign this Lease or sublet the Premises, or any portion of it, to any then-existing Tenant of the Buildings on the Land.
F. Tenant agrees to reimburse Landlord for all expenses and time, including attorneys' fees, incurred by Landlord in connection with any requested and permitted assignment or subleasing. This sum shall be in addition to the attorneys' fees and costs allowed under this Lease.
G. In consideration of Landlord's consent to an assignment or sublease, Tenant agrees to pay to Landlord as and when received by Tenant, one hundred percent (100%) of any rent or consideration received by Tenant from any such assignee or subtenant which exceeds the amount of Base Rental payable hereunder by Tenant to Landlord.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; 's parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; 's assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant's obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made, provided that acquires performance by any such assignee or sublessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable thereunder. Any mortgage, pledge, sublease or assignment made in violation of this Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets or stock Premises,
deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as any sublease of a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment give notice to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leaseexistence and term thereof, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any name and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy address of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subtenant thereunder.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Noble International LTD)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly indirectly, sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised ________________________ [*} Confidential information has been omitted and filed separately with the Commission. Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Demised Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; providedwithheld, however, that Tenant shall have the right to assign all conditioned or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leasedelayed.
25.2. In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Demised Premises, then at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer[*], but not more than ninety (90) days in any event[*], prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”"ASSIGNMENT DATE"), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”"ASSIGNMENT NOTICE") containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease along with such other information as Landlord may reasonably require, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, Landlord in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may shall give consideration to the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), ) and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Demised Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualifications, or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion use of the Demised Premises.
25.4. As conditions precedent to Landlord’s consent Landlord considering a request by Tenant to a Subject TransferTenant's transfer of rights or subletting of the Demised Premises, Landlord may require any or all of the following:
(a) 25.4.1 Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) 25.4.2 Tenant shall reimburse Landlord for Landlord’s 's actual costs and expenses, including, without limitation, reasonable attorneys’ ' fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of 25.4.3 Written agreement from any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, that in the event Landlord gives such proposed transferee, assignee or sublessee third party notice that Tenant is in Default under this Lease, such proposed transfereethird party shall, assignee or sublessee shall thereafter during the continuance of such Default, make all payments otherwise due Tenant directly to Landlord, which payments shall will be received by Landlord without any liability being incurred by Landlord, on Landlord except to credit such payment against those due by Tenant under this the Lease, and any such proposed transferee, assignee or sublessee third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) 25.4.4 Any such transfer and consent to such Transfer shall be effected on forms reasonably approved by Landlord’s forms; ________________________ [*} Confidential information has been omitted and filed separately with the Commission.
25.4.5 Tenant shall not then be in Default hereunder;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) 25.4.6 Such third party's proposed transferee, assignee or sublessee’s use of the Demised Premises shall not require any change to be substantially the Permitted Usesame as Tenant's use;
(i) 25.4.7 Any agreement pertaining to Tenant's transfer of this Lease or subletting of any portion of the Demised Premises shall be in a form reasonably acceptable to Landlord, and Landlord shall not be bound by any provision of any agreement pertaining to the Transfermodification or amendment made without Landlord's prior written consent, except for which may be withheld in Landlord’s written consent to the same's reasonable discretion;
(j) 25.4.8 Tenant shall deliver to Landlord one original executed copy of any and all written instruments evidencing or relating to Tenant's transfer of rights or subletting of the TransferDemised Premises; and
(k) 25.4.9 A list of Hazardous Materials (as defined in Section 39.7 below)Materials, certified by the proposed transferee, assignee or sublessee to be true and correct, that which the proposed transferee, assignee or sublessee intends to use or store in the Demised Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Demised Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2Article 41 below.
25.4.10 Evidence with respect to the business experience, reputation and financial responsibility of the third party concerned.
25.5. Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of the Demised Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, assignee any assignees of this Lease or sublessee of the Demised Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, assignment or subletting nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding In the event of any Transfersubletting, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting of the Demised Premises.
25.8. [Intentionally omitted]
25.9. If Tenant sublets Notwithstanding anything to the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under contrary set forth in this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by TenantArticle 25, Tenant shall have the right right, upon prior written notice to collect such rent.Landlord in each instance but without the necessity of obtaining Landlord's consent, to (i) assign or otherwise transfer this Lease or any of its rights hereunder, (ii) sublet the Demised Premises or any part thereof, (iii) permit the use of the Demised Premises or any part thereof by any persons other than Tenant or its employees, agents or invitees, and (iv) permit the assignment or other transfer
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, ,either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant, provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease and that the assignee shall have a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to the net worth (as so determined) of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred immediately prior to herein as a “Subject Transfer”). Notwithstanding the assignment, then Landlord upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.3 In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee other than one set forth in Section 25.2, then at least twenty forty-five (2045) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety (90) days in any eventdays, prior to the date data when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent •consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In If Landlord fails to deliver written notice of its determination to Tenant within thirty (30) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall be deemed to have approved the request. to no event shall shall. Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualificationsqualification, seeking a change in the Permitted Useuse, or jeopardizing directly or indirectly intending a use which may increase the status risk of Landlord or contamination by Hazardous Material. As a condition to any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises and Landlord as assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not unreasonably withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.8. [Intentionally omitted]
25.9. 25.9 If Tenant assigns this Lease or sublets the Premises or any potion portion thereof, once Tenant hereby immediately has recovered any leasing commissions, costs of tenant improvements, and irrevocably assigns other expenses of the assignment or subletting, then one-half (1/2) of any consideration paid by the assignee or sublessee which exceeds Rent under this Lease (or for the portion of the Premises being sublet) shall be due, owing and payable from Tenant to Landlord when paid or owing by the assignee or sublessee.
25.10 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, as security for Tenant’s obligations under at Landlord's sole option, in the event of the termination of this Lease, all rent from . Landlord and any such subletting, lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and appoints nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Sublease Agreement (Affymetrix Inc)
Assignment or Subletting. 25.1. Except as hereinafter providedSection 8.01 A. (i) Tenant, Tenant under penalty of instant ------------ forfeiture, shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer pledge this Lease, nor underlet or sublet sublease the Demised Premises or any part hereof (each, a “Transfer”), thereof without Landlord’s prior the written consentconsent of Landlord first had and obtained, which consent Landlord may shall not be unreasonably withholdwithheld or delayed; providednor after such written consent has been given shall any assignee or sublessee assign, however, that Tenant shall have the right to assign all mortgage or any portion of its interest under pledge this Lease or sublet all such sublease or underlet or sublease the Demised Premises or any portion part thereof without an additional written consent by Landlord which subsequent consent shall also not be unreasonably withheld or delayed; and in neither case without such consent shall any such assignment, mortgage, pledge, underletting or sublease be valid. An assignment within the meaning of this Lease is understood and intended to encompass not only (i) the voluntary action of Tenant, and (ii) a transfer by Tenant of an existing equity interest in Tenant or the issuance of a new equity interest in Tenant or some combination of both which has the effect of changing the party, if any, who has majority control of the Premises without Landlord’s Tenant at the time of the execution of this Lease, but also any levy or sale on execution or other legal process and every assignment for the benefit of creditors, adjudication or sale in bankruptcy or insolvency or under any other compulsory procedure or order of court. A transfer of a stock interest in the Tenant between a shareholder and members of his immediate family, or the sale of a majority of Tenant's common stock or assets to another successive, acquiring entity, shall not be considered an assignment within the meaning of this Lease. No assignment or sublease, if consented to in the manner aforesaid, shall in any way relieve or release Tenant from liability upon any of the covenants under the terms of this Lease, and notwithstanding any such assignment or sublease, the responsibility and liability of Tenant hereunder shall continue in full force and effect until the expiration of the term during which the assignment occurs, including any renewal of this Lease which may subsequently be exercised by any successor Tenant. No assignment shall be valid unless the assignee shall consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially and agree in writing to be bound by all of the assets covenants and conditions herein contained.
B. If this Lease is assigned, or stock of Tenant (an “Allowable Transfer”). Any Transfer if the Demised Premises or any part thereof are sublet or occupied by anybody other than an Allowable Transfer Tenant, Landlord may, in the event of a default by Tenant beyond the applicable cure period, collect rent from the assignee, sublessee or occupant, and apply the amount collected to the rent payable hereunder; but no such collection shall be referred to herein deemed a waiver of this covenant against assignment and subletting, or the acceptance of the assignee, sublessee or occupant as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this LeaseTenant.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), C. If Tenant shall provide written notice desire to assign this Lease or to sublet the Demised Premises in whole or in part (where Landlord's consent is required) Tenant shall submit to Landlord a written request for Landlord's consent to such assignment or subletting, which request shall contain or be accompanied by the following information: (i) the “Assignment Notice”) containing information (including references) concerning the character name and address of the proposed transferee, assignee or sublesseesubtenant; (ii) a description identifying the Assignment Datespace to be sublet and Tenant's improvements included therein; any ownership or commercial relationship between Tenant and (iii) the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees assignment or subletting; (iv) the nature and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a character of the business of the proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), subtenant and any change in use that such transferee, assignee or sublessee proposes to make in the its proposed use of the Demised Premises; and (v) current financial information and any other information Landlord may reasonably request with respect to the proposed assignee or subtenant. In no event connection with such request by Tenant to Landlord for consent, the following additional conditions shall Landlord be deemed to fulfilled:
(1) Tenant shall not then be unreasonable for declining to consent to a Transfer to a transfereein default hereunder beyond the applicable cure period, assignee and said default must be cured simultaneously with or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent prior to Landlord’s consent 's consent;
(2) In case of a subletting, it shall be expressly subject to a Subject Transfer, Landlord may require any or all of the following:obligations of Tenant under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance; and
(a3) No subletting shall end later than one (1) day before the Expiration Date of this Lease or shall be for a term of less than one (1) year unless it ends not more than one (1) month before the Expiration Date.
D. Every subletting hereunder is subject to the express condition, and by accepting a sublease hereunder each subtenant shall be conclusively deemed to have agreed, that if this Lease should be terminated prior to the Expiration Date or if Landlord shall succeed to Tenant's estate in the Premises, then at Landlord's election the subtenant shall attorn to and recognize Landlord as subtenant's landlord under the sublease and the subtenant shall promptly execute and deliver any instruction Landlord may reasonably request to evidence such attornment.
E. Tenant shall furnish Landlord with a counterpart (which may be a conformed or reproduced copy) of each sublease or assignment made hereunder within ten (10) days after the date of its execution. Tenant shall remain fully liable for the performance of all of Tenant's obligations hereunder notwithstanding any subletting provided for herein, and without limiting the generality of the foregoing, shall remain fully responsible and liable to Landlord for all acts or omissions of any subtenant or anyone claiming under or through any subtenant which shall be in violation of any of the obligations of this Lease during and any such violation shall be deemed to be a violation by Tenant.
F. Notwithstanding any assignment or assumption by the unexpired Term;
assignee of the obligations of Tenant hereunder, Tenant herein named, shall remain liable jointly and severally (bas a primary obligor) Tenant with its assignee and all subsequent assignees for the performance of Tenant's obligations hereunder, and, without limiting the generality of the foregoing, shall provide Landlord with evidence reasonably satisfactory remain fully and directly responsible and liable to Landlord that for all acts and omissions on the value part of Landlord’s interest under any assignee subsequent to it in violation of any of the obligations of this Lease.
G. Notwithstanding anything to the contrary hereinabove set forth, no assignment of this Lease shall not be diminished or reduced by binding upon Landlord unless the proposed Subject Transfer. Such evidence assignee shall include, without limitation, evidence respecting the relevant business experience execute and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due deliver to Landlord under this Leasean agreement, Tenant shall pay twenty-five percent (25%) of all of whereby such excess assignee agrees unconditionally to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining and to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, perform all of the items relating to Hazardous Materials obligations of Tenant hereunder and further expressly agrees that notwithstanding such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with assignment the provisions of this Section 25 Article shall continue to be void.
25.6binding upon such assignee with respect to all future assignments and transfers. The consent by Landlord A failure or refusal of such assignee to a Transfer execute or deliver such an agreement shall not relieve Tenant or proposed transferee, release the assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee its liability for the obligations of Tenant from full and primary liability under hereunder assumed by acceptance of the assignment of this Lease.
25.7. Notwithstanding H. As a condition to any Transferassignment or sublease being effective as against Landlord, a fully executed copy of the assignment or sublease shall be delivered to Landlord before its effective date with respect to any assignment or sublet for which Landlord's consent is required and Tenant shall remain fully pay to Landlord's attorney a reasonable attorneys' fee, which shall not exceed $500.00 for legal services required by Landlord for review and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance approval of any other term, covenant such assignment or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfersublease documentation.
25.8. [Intentionally omitted]
25.9. If I. Tenant sublets the Premises may pledge or encumber by security agreement, financing statement or other commercially usual means, any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for installations of Tenant, and Landlord (in connection with financing the repairs, maintenance or a receiver for Tenant appointed on Landlord’s application) may collect replacement of such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentequipment.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, A. If Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without requests Landlord’s consent to any parent, subsidiary an assignment of the Lease or affiliate subletting of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all a portion of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer Premises, it shall be referred submit to herein as a “Subject Transfer”). Notwithstanding the foregoingLandlord, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In writing, (i) the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease name and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character legal composition of the proposed transferee, assignee or sublessee; subtenant, (ii) the Assignment Date; any ownership or commercial relationship between Tenant and use to which the proposed transferee, assignee or sublessee; and subtenant intends to put the consideration and all other material Premises, (iii) the terms and conditions of the proposed Transferassignment or sublease and of any related transaction between Tenant and the proposed assignee or subtenant; (iv) information related to the experience, all in integrity and financial resources of the proposed assignee or subtenant; (v) such detail publicly disclosed information as Landlord shall may reasonably require. Tenant shall reimburse Landlord request to explain the transaction; (vi) reimbursement for all reasonable attorneys’ fees and other reasonable out-of-out of pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s including actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with evaluating the reviewrequest and preparing any related documentation, processing which shall not exceed Two Thousand Dollars ($2,000.00); and documentation of such request;
(dvii) If a Transfer the nature and character of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess business of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordsubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining B. Landlord’s consent to any further Subject Transfer, nor such proposed assignment or subletting shall it release Tenant not be unreasonably withheld. Landlord shall be considered to have reasonably denied its consent to a proposed assignment or any proposed transferee, sublease if:
(i) The assignee or sublessee does not meet the minimum net worth and creditworthiness standards utilized at the Building for tenants of a similar size and use;
(ii) Tenant has not given Landlord thirty (30) days’ prior written notice of such assignment or sublease, which notice shall include all information and documentation reasonably required to satisfy the above conditions;
(iii) Tenant is in default beyond any applicable cure period at the time of the assignment or sublease (but at such time as any default is cured, the assignment or sublease may proceed); and
(iv) The assignee or sublessee fails to furnish Landlord at least ten (10) days prior to the effective date of the assignment or sublease, a written assignment instrument in which assignee or sublessee agrees to assume and be bound by all of the conditions, obligations and agreements of Tenant from full and primary liability under contained in this Lease.
25.7C. This Paragraph shall not apply in the case of an assignment or sublease by Tenant to a corporation which is the parent or subsidiary of or is controlled by Tenant, or to a corporation resulting from any reorganization or merger to which Tenant or its parent or any of its subsidiaries or any corporation controlled by it is a party.
D. In no event will Tenant be released from its obligations under the Lease. Notwithstanding any TransferIf consent to an assignment or sublease is given, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns pay to Landlord, as security for Additional Rent fifty percent (50%) of all amounts received from the assignee or subtenant in excess of the amounts otherwise payable by Tenant to Landlord with respect to the space involved calculated on a per square foot basis, less Tenant’s obligations under this Lease, cost of commissions and legal fees. Profits on an assignment or sublease by Tenant shall be computed after deduction of all rent from expenses incurred by Tenant in connection with any such subletting, sublease or assignment including (a) brokerage; (b) reasonable legal fees; (c) construction costs; (d) market financial concessions granted to subtenant; (e) depreciation of any laboratory equipment owned by Tenant and appoints Landlord as assignee used by subtenant and attorney-in-fact for Tenant, and Landlord (f) any other costs reasonably incurred by Tenant applicable to the sublease or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentassignment.
Appears in 1 contract
Samples: Lease (Nanosphere Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, a) Tenant shall notnot assign, either voluntarily transfer, mortgage or otherwise encumber this Lease or sublet or rent (or permit a third party to occupy or use) the Premises, or any part thereof, nor shall any assignment or transfer of this Lease or the right of occupancy hereunder be affected by operation of Applicable Lawslaw or otherwise, directly without the prior written consent of Landlord, which shall not be unreasonably withheld. A transfer at any one time or indirectly sellfrom time to time of twenty percent (20%) or more of an interest in the aggregate in Tenant (whether stock, hypothecate, assign, pledge, encumber partnership interest or otherwise transfer other form of ownership or control) by any person(s) or entity(ties) having an interest in ownership or control of Tenant shall be deemed to be an assignment of this Lease, and the person(s) and or sublet entity(ties) acquiring such percentage or to which such percentage is conveyed or otherwise transferred shall for purposes of this Lease shall be consider the assignee. Within thirty (30) calendar days following Landlord's receipt of Tenant's request for Landlord's consent to a proposed assignment, sublease, or other encumbrance, together with all information required to be delivered by Tenant pursuant to section (d) of this Article, Landlord shall: (i) consent to such proposed transaction; (ii) refuse such consent; or (iii) elect to terminate this Lease in the event of an assignment, or in the case of a sublease, terminate this Lease as to the portion of the Premises proposed to be sublet in accordance with the provisions of section (f) of this Article. Any assignment, sublease or other encumbrance without Landlord's written consent shall be voidable by Landlord and, at Landlord's election, constitute an Event of Default hereunder.
b) Without limiting other instances in which Landlord may withhold consent to an assignment or sublease, Landlord and Tenant acknowledge that Landlord may withhold consent in the following instances:
i) If the proposed use of the Premises by the assignee or sublessee conflicts with Article 20 of this Lease, requires alterations that would decrease the value of the leasehold improvements in the Premises, requires substantially increased services by Landlord, or would result in more than a reasonable number of occupants per floor;
ii) If the proposed assignee or sublessee is: a governmental entity; a person or entity with whom Landlord has negotiated for space in the Project during the prior twelve (12) months; a present tenant in the Project; a person or entity whose tenancy in the Project would violate any exclusivity arrangement which Landlord has with any other tenant; a person or entity of a character or reputation or engaged in a business which is not consistent with the quality of the Project; or not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under this Lease on the date consent is requested;
iii) Intentionally deleted.
iv) If an Event of Default has occurred under this Lease or if an Event of Default would occur but for the pendency of any cure periods provided under Article 29 of this Lease.
c) Notwithstanding that the prior express written permission of Landlord to any of the aforesaid transactions may have been obtained, the following shall apply:
i) In the event of an assignment, contemporaneously with the granting of Landlord's aforesaid consent. Tenant shall cause the assignee to expressly assume in writing and agree to perform all of the covenants, duties, and obligations of Tenant hereunder and such assignee shall be jointly and severally liable therefore along with Tenant.
ii) All terms and provisions of this Lease shall continue to apply after any such transaction.
iii) In any case where Landlord consents to an assignment, transfer, encumbrance or subletting, the undersigned Tenant and any Guarantor shall nevertheless remain directly and primarily liable for the performance of all of the covenants, duties, and obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent and other sums herein provided to be paid), and Landlord shall be permitted to enforce the provisions of this instrument against the undersigned Tenant, any Guarantor and/or any assignee without demand upon or proceeding in any way against any other person. Neither the consent by Landlord to any assignment, transfer, encumbrance or subletting nor the collection or acceptance by Landlord of rent from any assignee, subtenant or occupant shall be construed as a waiver or release of the initial Tenant or any part hereof (eachGuarantor from the terms and conditions of this Lease or relieve Tenant or any subtenant, a “Transfer”)assignee or other party from obtaining the consent in writing of Landlord to any further assignment, without transfer, encumbrance or subletting.
iv) Tenant hereby assigns to Landlord the rent and other sums due from any subtenant, assignee or other occupant of tire Premises and hereby authorizes and directs each such subtenant, assignee or other occupant to pay such rent or other sums directly to Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, provided however, that until the occurrence of an Event of Default, Tenant shall have the right license to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer continue collecting such rent and other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”)sums. Notwithstanding the foregoing, in no the event shall Tenant be released from that the rent due and payable by a sublessee under any such permitted sublease (or a combination of its obligations the rent payable under such sublease plus any bonus or other consideration therefore or incident thereto) exceeds the hereinabove provided Rent payable under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days or if with respect to a sublease and at least thirty (30) days with respect to any permitted assignment, permitted license, or other Transfertransfer by Tenant permitted by Landlord, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of payable to Tenant by the proposed Transferassignee, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Uselicensee, or jeopardizing directly or indirectly other transferee exceeds the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord Rent payable under this Lease, then Tenant shall be bound and obligated to pay twenty-five percent (25%) of all of Landlord such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees rent and free rent. If said other excess consideration consists of cash paid to Tenant, payment to Landlord shall be made upon within ten (10) calendar- days following receipt thereof by Tenant of from such cash payment;
(e) The proposed sublessee, assignee, licensee, or other transferee, assignee or sublessee shall agree that, in as the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordcase may be.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)in part, without first having obtained the written consent of Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any assignment or sublease by Tenant shall be only for the purpose specified in Section 1.1, Item 4 of the Lease, and for no other purpose, without the prior written consent of Landlord, and in no event shall any assignment or sublease of the Premises release or relieve Tenant from any obligations of this Lease. It shall be a condition to any consent by Landlord may not unreasonably withhold; provided, however, to an assignment or sublease that Tenant shall have pay to Landlord a processing fee in the right amount of One Thousand and 00/100 Dollars ($1,000.00) as reimbursement to assign all Landlord for its review and preparation of assignment or sublease-related documents, which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant’s request for Landlord’s consent. Any consent by Landlord to any portion assignment or sublease, or to the operation of its interest under this Lease a concessionaire or sublet all licensee, shall not constitute a waiver or the necessity for such consent to any subsequent assignment or sublease, or operation by a concessionaire or licensee. In the event Tenant shall sublease any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) rentals in excess of the rental and other charges due to Landlord under this LeaseRent payable hereunder on a per square foot basis higher than Tenant is paying hereunder, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Additional Rent hereunder, fifty percent (50%) of such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant’s obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (10) days prior to the effective date of the proposed assignment. Notwithstanding any of the foregoing provisions, if Tenant is in default under any of the terms of this Lease, all rent from Lease beyond any such subletting, notice and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenantcure period, Tenant shall have may not assign or sublet the right to collect such rentPremises in whole or in part.
Appears in 1 contract
Assignment or Subletting. 25.1Lessee shall not assign this lease or any ------------------------- interest herein and shall not sublet the premises or any part thereof or any right or privilege appurtenant thereto or permit any other person (the agents and servants of Lessee excepted) to occupy or use the premises or any portion thereof without the written consent of Lessor first being had and obtained, which consent shall not be unreasonably withheld if the proposed assignee or subtenant meets Lessor's financial requirements, is of good business reputation, would be compatible with the other tenants of the building and meets such other reasonable requirements as may be established by Lessor. Except A consent to one assignment, subletting, or occupation and use by another person shall not be deemed to be a consent to any other or further assignment, subletting, or occupation nor a waiver of the provisions of this paragraph, except as hereinafter providedto the specific instance covered thereby. Any such assignment, Tenant subletting or occupation without consent shall not, either voluntarily or be void and shall at the option of Lessor terminate this lease. This lease and any interest in it shall not be assignable as to the interest of Lessee by operation of Applicable Lawslaw without the written consent of Lessor. In the case of an individual Lessee, directly the subsequent incorporation of Lessee's business and transfer of rights hereunder to a corporation shall constitute a prohibited assignment within the meaning of this paragraph. In the event Lessor shall consent to any assignment or indirectly sellsubletting, hypothecateLessee shall in all events remain fully liable on this lease and shall not be released from performing any of the terms, assigncovenants, pledge, encumber or otherwise transfer and conditions of this Lease, or sublet lease. In the Premises event Lessee shall assign this lease or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all interest herein or any portion of its interest under this Lease or sublet all or sublease any portion of the Premises premises, then, on a monthly basis, 50% any sums of money, or other economic consideration received by Lessee from the transferee, including higher rent, bonuses, key money or the like, which exceed, in the aggregate, the total sums which Lessee pays Lessor under this lease with respect to the premises so subleased or assigned (after deducting from such consideration received by Lessee the reasonable costs to Lessee to effectuate the assignment or sublease, including without Landlord’s consent limitation, reasonable attorneys' fees, brokerage or leasing commissions, and remodelling costs) shall be payable to Lessor as additional rental under this lease without affecting or reducing any parent, subsidiary or affiliate other obligation of Tenant; or any party Lessee hereunder. The agreement to pay such sums is the result of negotiations between the parties hereto in which the parties agree that results from a merger or consolidation the delivery of Tenant; or any party that acquires all or substantially all said sums to Lessor and has been bargained for by Lessee in consideration of the assets or stock of Tenant (an “Allowable Transfer”)other economic benefits provided by Lessor to Lessee under this lease. Any Transfer other than an Allowable Transfer shall be referred Lessee agrees to herein as a “Subject Transfer”)reimburse Lessor for all reasonable expenses, including reasonable attorneys' fees, incurred by Lessor in connection with any requested assignment. Notwithstanding the foregoing, in no event shall Tenant be released from any of Lessor agrees to give its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect consent to any other Transfersublease or assignment of this lease to (i) a subsidiary, but not more than ninety affiliate, division or corporation controlling, controlled by or under common control with Lessee, (90ii) days in any eventa successor corporation related to Lessee by merger, prior to consolidation, non-bankruptcy reorganization or government action, (iii) a purchaser of substantially all of Lessee's assets located on the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Usepremises, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (aiv) Landlord agrees to reasonably evaluate any proposed transferee’sInvision Company, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event all events Lessee shall Landlord or its Lenders, successors or assigns be obligated to accept remain liable hereunder and any such attornment;
(f) Any consent to such Transfer assignee and/or sublessee shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined agree in Section 39.7 below), certified by the proposed transferee, assignee or sublessee writing to be true jointly and correct, that the proposed transferee, assignee or sublessee intends severally liable with Lessee with respect to use or store in the PremisesLessee's obligations hereunder. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions For purposes of this Section 25 shall be void.
25.6. The consent by Landlord to lease, a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee sale of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant Lessee's capital stock shall not be deemed a waiver of any of the provisions an assignment, subletting or other transfer of this Lease lease or a consent to any Transferthe premises requiring Lessor's consent.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Office Lease (Evolve Software Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided16.01 Tenant agrees not to sell, Tenant shall notassign, either voluntarily or by operation of Applicable Laws, directly or indirectly sellmortgage, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this Lease, Lease or any estate or interest hereunder and not to sublet the Premises or any part hereof (each, a “Transfer”), or parts thereof without the previous written consent of Landlord’s prior written consent, which consent by Landlord shall not be unreasonably withheld. If Tenant violates the provisions of this Article 16, Landlord may accept from any assignee, sublessee, licensee, concessionaire or anyone who claims a right to the interest of Tenant under this Lease or who occupies any part or the whole of the Premises the payment of Minimum Rent and Additional Rent and/or the performance of any of the other obligations of Tenant under this Lease, but acceptance shall not unreasonably withholdbe deemed to be a waiver by Landlord of the breach by Tenant of the Provisions of this Article 16, nor a recognition by Landlord that any such assignee, sublessee, licensee, concessionaire, claimant or occupant has succeeded to the rights of Tenant hereunder, nor a release by Landlord of Tenant from further performance by Tenant of the covenants on Tenant's part to be performed under this lease; provided, however, that Tenant the net amount of rent collected from any such assignee, sublessee, licensee, concessionaire, claimant or occupant shall have be applied by Landlord to the right rent to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s be paid hereunder. Any consent by landlord to any parentsuch assignment, subsidiary transfer, subletting, license or affiliate concession or other matter or thing contained in this Article 16 shall not in anyway be construed to relieve Tenant from obtaining the prior consent of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect Landlord to any other Transferor further such assignment, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenantlicense, and Landlord (concession, matter or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rentthing.
Appears in 1 contract
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold, condition or delay; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate (i.e. any entity controlling, controlled by, or under common control with Tenant) of Tenant; or any party that results from a merger merger, nonbankruptcy reorganization, government action, or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). A sale or transfer of Tenant’s capital stock shall not be deemed an assignment, subletting or any other transfer of this Lease or the Premises. Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). ) Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 25.2 In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of naming the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse also tender to Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs or overhead expenses incurred by Landlord in reviewing Tenant’s request for such TransferTransfer (not to exceed Two Thousand Five Hundred Dollars ($2,500)).
25.3. 25.3 Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises that is not a Permitted Use under this Lease, and Landlord’s desire to exercise its rights under Section 25.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Internal Revenue Code of 1986, as amended from time to time. Notwithstanding anything in this Section 25 to the contrary, Landlord agrees to reasonably evaluate the financial condition of any proposed transferee’s, assignee’s assignee or sublessee’s , and shall only have the right to evaluate such financial qualifications and condition in the event that (a) such sublease is for all or substantially all of the Premises or (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any both occupies and leases a portion of the Premises.
25.4. 25.4 As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Subject to Section 25.3, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, not to exceed Two Thousand Five Hundred Dollars ($2,500)), including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Subject Transfer of the Premises or any portion thereof provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to LandlordLandlord as and when received, prior to after deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent and the unamortized value of any improvements to the Premises made by Tenant. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent Consent to any such Transfer shall be effected on Landlord’s reasonable forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder in any respect, after the expiration of which Tenant has been given any applicable notice by Landlord.and cure periods;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. 25.5 Any Transfer that is not in compliance with the provisions of this Section 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Subject Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. 25.7 Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. 25.8 [Intentionally omitted]
25.9. 25.9 If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Zosano Pharma Corp)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may shall not be unreasonably withhold; providedwithheld, howeverconditioned or delayed by Landlord. Notwithstanding the foregoing or any provision in this Lease to the contrary, that Tenant shall have the right to assign all or any portion of its interest under this Lease or to sublet all or any a portion of the Premises without Landlord’s consent to any parentcorporation or business entity which controls, subsidiary is controlled by or affiliate of is under common control with Tenant; , or any party that results to a corporation or other business entity resulting from a merger or consolidation of with Tenant; , or to any party that person or entity which acquires all or substantially all of the assets or stock of Tenant Tenant’s businesses as a going concern (an “Allowable TransferAffiliate”). Any Transfer other than ; provided that in the case of an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding assignment, the foregoing, assignee assumes in no event shall full the obligations of the Tenant be released from any of its obligations under this Lease.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer; and, if Tenant is requesting to be released from liability upon any assignment of the Lease to a Qualified Assignee (as defined below), the net worth of the Qualified Assignee (together with supporting documentation), all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises, (c) whether any such transferee, assignee or sublessee is the subject of a material enforcement order issued by a Governmental Authority in connection with the use, disposal or storage of Hazardous Materials, and (d) if Tenant is requesting to be released from liability upon any assignment of the Lease to a Qualified Assignee, the net worth of the Qualified Assignee. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). In no event shall Landlord be deemed to be unreasonable for declining to consent to release Tenant from liability upon any assignment of the Lease if the proposed assignee is not a Qualified Assignee. Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired TermTerm (except that Tenant may request in writing to be released from liability upon an assignment of the Lease to an assignee with a net worth that is at least equal to the net worth of Tenant as of the Execution Date or the proposed effective date of the assignment, whichever is greater, and which assumes in full, in writing, all of Tenant’s obligations, duties and liabilities under the Lease, whether arising before or after such assignment (a “Qualified Assignee”));
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request, up to a maximum reimbursement of Two Thousand Dollars ($2,000);
(d) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(g) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(k) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent to any later Transfer;
(l) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(km) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.629.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this LeaseLease (unless, at the time of Landlord’s consent to an assignment of the Lease to a Qualified Transferee, Landlord agreed in writing to release Tenant from liability upon such assignment to such Qualified Assignee).
25.729.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by TenantTenant (unless, at the time of Landlord’s consent to an assignment of the Lease to a Qualified Transferee, Landlord agreed in writing to release Tenant from liability upon such assignment to such Qualified Assignee). The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Inovio Pharmaceuticals, Inc.)
Assignment or Subletting. 25.19.1. Except with the prior written consent of Sublandlord (and Master Landlord if and as hereinafter providedrequired by the Master Lease, Tenant and subject to the standards imposed on Master Landlord’s consent, if any, thereunder), which consent of Sublandlord shall notnot be unreasonably withheld, either voluntarily conditioned or delayed, Subtenant shall not voluntarily, involuntarily or by operation of Applicable Laws, directly law (a) Transfer (as defined in the Master Lease) this Sublease or indirectly sell, hypothecate, assign, pledge, encumber any interest under it; (b) allow any Transfer thereof or otherwise transfer this Lease, or any lien upon Subtenant’s interest by operation of law; (c) further sublet the Sublease Premises or any part hereof thereof; or (each, d) permit the occupancy of the Sublease Premises or any part thereof by anyone other than Subtenant (all of the foregoing hereby referred to collectively herein as a “Transfer”). Subtenant shall provide Sublandlord with not less than thirty (30) days prior notice of a proposed Transfer. With any request for consent to a Transfer, Subtenant will submit a copy of the proposed Transfer document to Sublandlord and notify Sublandlord of the proposed effective date of the Transfer, the name of the proposed transferee (accompanied by evidence of the nature, character, ownership, business, and financial condition of the transferee and its business), all terms and conditions (including rental and other consideration) of or relating to the Transfer and a general description of any proposed alterations. Sublandlord shall grant or deny its consent to the proposed Transfer within thirty (30) days following submission of Subtenant’s request accompanied by the information required herein. Consent by Sublandlord to any Transfer shall not be a waiver of Sublandlord’s rights as to any subsequent Transfer. Subtenant shall pay Sublandlord a review fee not exceeding $1,000.00 for Sublandlord’s review of any requested Transfer for its actual, out of pocket, reasonable costs and expenses (including reasonable attorneys’ fees); provided, that in addition and not subject to the $1,000 maximum, Subtenant shall pay Sublandlord any expenses and other amounts (including attorneys’ fees) charged by Master Landlord in connection therewith, when applicable and only to the extent provided for in the Master Lease. Any approved Transfer shall be expressly subject to the terms and conditions of the Master Lease and this Sublease. Upon Default while a Transfer is in effect, Sublandlord may collect directly from the transferee all sums becoming due to Subtenant under the Transfer and apply such amount against any sums due Sublandlord by Subtenant, and Subtenant hereby authorizes and directs any transferee to make payments directly to Sublandlord upon notice from Sublandlord. No direct collection by Sublandlord from any transferee shall constitute a novation or release of Subtenant, a consent to the Transfer or a waiver of the covenant prohibiting Transfers. Sublandlord, as Subtenant’s agent, may endorse any check, draft or other instrument payable to Subtenant for sums due under a Transfer, and apply the proceeds in accordance with this Sublease; this agency is coupled with an interest and is irrevocable.
9.2. Notwithstanding anything to the contrary in this Sublease, so long as the Subtenant’s transferee assumes Subtenant’s obligations hereunder in form and substance reasonably acceptable to Sublandlord (and Master Landlord if and to extent required under the Master Lease), and without releasing Subtenant from primary liability hereunder, Subtenant may, without LandlordSublandlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sub-sublet all or any portion portions of the Sublease Premises without Landlord’s consent or assign the Sublease to: (i) a subsidiary, affiliate, parent or other entity which controls, is controlled by, or is under common control with, Subtenant; (ii) a successor corporation related to any parentSubtenant by merger, subsidiary consolidation or affiliate non-bankruptcy reorganization; (iii) a purchaser of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of Subtenant’s assets.
9.3. If the assets or stock consideration Subtenant receives for any Transfer (including key money and bonus money, but excluding any consideration reasonably allocable to any property of Tenant (an “Allowable Transfer”). Any Transfer Subtenant other than an Allowable Transfer shall be referred its interest in this Sublease (e.g., consideration reasonably allocable to herein as a “Subject services or assets provided or transferred in connection with the Transfer”). Notwithstanding ) exceeds the foregoing, in no event shall Tenant be released from any of its obligations rent payable under this Lease.
25.2. In Sublease for the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease same period and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Sublease Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all then fifty percent (50%) of the following:
such excess (a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value net of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall includereasonable, without limitation, evidence respecting the relevant business experience and financial responsibility and status out of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing such Transfer) shall be immediately due and documentation of such request;
(d) If a Transfer of the Premises provides payable by Subtenant to Sublandlord as Other Charges under this Sublease. Subtenant shall allow Sublandlord to review and audit Subtenant’s book and records for the receipt by, on behalf purpose of verifying Subtenant’s calculation of excess rent payable to Sublandlord.
9.4. No assignment or on account of Tenant of sublease approved hereunder shall be effective or commence unless and until any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease Default by Subtenant hereunder has been cured. No assignment or lump sum payment for an assignment, but excluding Tenantsubletting permitted pursuant to this Section shall relieve Subtenant from Subtenant’s reasonable costs in marketing obligations and subleasing the Premises) in excess of the rental and other charges due to Landlord agreements under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this LeaseSublease, and any such proposed transfereeSubtenant shall continue to be liable as a principal and not as a guarantor or surety, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing same extent as though no assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2subletting had been made.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided,
(a) Tenant shall not, either not (and shall not permit any Person) voluntarily or involuntarily, by operation of Applicable Lawslaw or otherwise: (i) transfer, directly or indirectly sellassign, mortgage, encumber, pledge, hypothecate, assign, pledge, encumber or otherwise transfer assign all or any of its interest in this Lease, or (ii) sublet or permit the Premises Premises, or any part hereof thereof, to be used by others including, but not limited to concessionaires or licensees, or (each, a “Transfer”iii) issue new stock (or partnership shares or membership interests), create additional classes of stock (or partnership shares or membership interests), or sell, assign, hypothecate or otherwise transfer the outstanding voting stock (or partnership shares or membership interests) so as to result in a change in the present control of Tenant or any permitted Transferee, provided, however, that this subparagraph (iii) shall not be applicable to Tenant if it is a publicly owned corporation whose outstanding voting stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded actively in the over-the-counter market, or (iv) sell, assign or otherwise transfer all or substantially all of Tenant’s or any permitted Transferee’s assets; without the prior consent of Landlord’s prior written consent, in each instance, which consent Landlord may withhold in its sole and absolute discretion. All of the foregoing transactions shall be referred to collectively or singularly as a “Transfer”, and the Person to whom Xxxxxx’s interest is transferred shall be referred to as a “Transferee.”
(b) Any Transfer without Landlord’s consent shall not unreasonably withhold; providedbe binding upon Landlord, howeverand shall confer no rights upon any third Person. Each such unauthorized Transfer shall, that without notice or grace period of any kind, constitute a Default by Tenant shall have the right to assign all or any portion of its interest under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Section shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rent obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. No reference in this Lease to assignees, concessionaires, subtenants or sublet all or any portion licensees shall be deemed to be a consent by Landlord to the occupancy of the Premises without by any such assignee, concessionaire, subtenant or licensee.
(c) Landlord’s consent to any parentTransfer shall not operate as a waiver of, subsidiary or release of Tenant from, Xxxxxx’s covenants and obligations hereunder; nor shall the collection or acceptance of Rent or other performance from any Transferee have such effect. Rather, Tenant shall remain fully and primarily liable and obligated under this Lease for the entire Term in the event of any Transfer, and in the event of a Default by the Transferee, Landlord shall be free to pursue Tenant, the Transferee, or both, without prior notice or demand to either.
(d) Tenant shall reimburse Landlord for attorney’s fees and any other out-of-pocket expenses incurred by Landlord involved with the review, processing or preparation of any documentation in connection with a Transfer, whether or not Landlord’s consent to such Transfer is required or obtained.
(e) Upon Tenant’s request for approval for any Transfer, Landlord may elect to terminate this Lease by notice to Tenant, which termination shall be effective on the date set forth in such notice, but no earlier than sixty (60) days after the date of that notice.
(f) In the event of a Transfer by Tenant, Tenant shall pay to Landlord, as Additional Rent, as and when received by Xxxxxx, an amount equal to the difference between (i) all sums paid to Tenant or its agent by or on behalf of such Transferee, and (ii) the Monthly Base Rent and Additional Rent paid by Tenant under this Lease and attributable to the portion of the Premises that is the subject of such Transfer
(g) Notwithstanding anything in the foregoing to the contrary, Xxxxxxxx’s consent shall not be required with respect to any Transfer to any of the following types of entities (each an “Permitted Transferee”):
(a) an entity that results from an organizational change of Tenant or the division of Tenant into two or more entities; (b) an affiliate of Tenant, meaning any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Tenant; (c) an entity with which Tenant or its corporate successors has merged or consolidated in accordance with applicable statutory provisions governing merger and consolidation of business entities; or any party that results from a merger or consolidation of Tenant; or any party that (d) an entity which acquires all or substantially all of the assets or stock membership interest of Tenant (an “Allowable Transfer”Landlord is expressly aware that Tenant is subject to a binding agreement whereby ownership of Tenant shall transfer 100% to Danam Health Inc. during the course of the Term); provided that, in each such case: (a) any such Transfer to a Permitted Transferee is not undertaken primarily for the purpose of avoiding the restrictions on Transfer contained in this Section 7; and (b) Xxxxxx’s obligations hereunder are assumed in writing by any such Permitted Transferee to which this Lease is Transferred. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder. Any such Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Use of the Premises limitation contained in this Lease. No later than ten (10) days after the effective date of any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations permitted under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”Section 7(g), Tenant shall provide written notice furnish to Landlord Landlord: (1) copies of any instrument effecting such Transfer; (2) documentation establishing the “Assignment Notice”) containing information (including references) concerning the character satisfaction of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant requirements and the proposed transferee, assignee or sublesseeconditions set forth herein; and the consideration and all other material terms and conditions (3) evidence of the proposed Transfer, all in such detail insurance as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord required under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Transfer pursuant to this Section 7(f) shall have the right not waive Landlord’s rights as to collect such rent.any subsequent Transfer.
Appears in 1 contract
Samples: Lease (Assure Holdings Corp.)
Assignment or Subletting. 25.1Section 1. Except as hereinafter provided, Tenant Lessee shall not, either voluntarily not assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise in any manner transfer this Lease--------- Lease or any interest therein, or nor sublet the said Leased Premises or any part hereof (eachor parts thereof, a “Transfer”)nor permit occupancy by anyone with, through, or under it, without Landlord’s prior the previous written consent, consent of Lessor which consent Landlord may shall not be unreasonably withhold; providedwithheld. It IS AGREED HOWEVER, howeverTHAT THE LESSOR HEREBY GIVES ITS CONSENT THAT LESSEE MAY ASSIGN THIS LEASE TO THERMAL ARC AT ANYTIME DURING THE LEASE TERM BUT ONLY IF PRESTOLITE IS NOT THEN IN DEFAULT THEREUNDER AND XXXXXX- XXXXXXXXX (AND ITS LENDER) HAVE REASONABLY APPROVED THE CREDITWORTHINESS OF THERMAL ARC (AND ITS PARENT, that Tenant shall have the right THERMADYNE HOLDINGS CORPORATION). Consent by Lessor to assign all one or any portion more assignments of its interest under this Lease or sublet all to one or any portion more sublettings of the Leased Premises without Landlord’s consent shall not operate as a waiver of Lessor's rights under this Article to any parent, subsidiary subsequent assignment or affiliate subletting. No assignment shall release Lessee of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to Lease or be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee construed or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail taken as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of Lessor's rights or remedies hereunder.
Section 2. Neither this Lease or a consent nor any interest therein, nor any --------- estate thereby created, shall pass to any Transfertrustee or receiver in bankruptcy or any assignee for the benefit of creditors or by operation of law.
25.8Section 3. [Intentionally omitted]
25.9Provided that the Lessee with Lessor's consent assigns or --------- sublets part or all of the Leased Premises at a rental that exceeds the current rental herein reserved, the Lessor shall be entitled to receive as additional rental one-half of such excess of the current rental. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any The Lessee shall remit one-half of such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord excess within five (or a receiver for Tenant appointed on Landlord’s application5) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default days after receipt by Tenant, Tenant shall have the right to collect such rentit.
Appears in 1 contract
Assignment or Subletting. 25.1A. Subtenant shall not have the right to assign or further sublet its interest in this Sublease without the express prior written consent of Prime Landlord and Sublandlord (which consent Sublandlord shall not unreasonably withhold, condition or delay in each instance), and without otherwise complying with the provisions of this Sublease and the applicable provisions of the Prime Lease. Except With regard to any contemplated sublet or assignment, Subtenant shall first submit in writing to Sublandlord for Sublandlord’s review and approval:
(a) the name and address of the proposed assignee or subtenant, (b) the proposed form of assignment or sublease, (c) a statement of the rent, additional rent and a description of the other material terms of the proposed transaction including without limitation the proposed use of the Sub-Premises, and (d) reasonably satisfactory certified financial statements showing that the proposed sub-subtenant or assignee has a net worth equal to the greater of Subtenant’s net worth as hereinafter demonstrated to Sublandlord prior to execution of this Sublease, or ten (10) times the amount of the rental obligation to be assumed by such sub-subtenant or assignee pursuant to the proposed sublease or assignment. Reviewed financial statements, as opposed to “certified” financial statements, shall be acceptable for purposes of the preceding sentence provided the proposed sub-subtenant or assignee has not provided certified financial statement to any investor or other third party covering any portion of the period for which Sublandlord is requesting financial statements. In the event that Prime Landlord approves Subtenant’s proposed sub-subtenant or assignee, Sublandlord agrees not to unreasonably withhold its consent to any such sublease or assignment, provided that Sublandlord has approved the documentation to be employed by Subtenant in connection with the transaction in question and further provided that Sublandlord has not exercised its recapture rights under this Article 22. The following shall be deemed an assignment of this Sublease for which Sublandlord’s consent shall be required: any dissolution, merger, consolidation, or other reorganization of Subtenant, any sale or transfer (or cumulative sales or transfers) of the capital stock of Subtenant in excess of fifty-one percent (51%), or any sale (or cumulative sales) or transfer of fifty-one percent (51%) or more of the value of the assets of Subtenant provided, Tenant however, the foregoing shall notnot apply to corporations the capital stock of which is publicly traded.
B. Upon receiving Sublandlord’s written consent, either voluntarily a duly executed and complete duplicate original of the sublease or assignment shall be delivered to Sublandlord and Prime Landlord within ten (10) days after execution thereof. Any such sublease or assignment shall provide that the subtenant or assignee, with respect to the Sub-Premises, shall comply with all applicable terms and conditions of this Sublease to be performed by operation the Subtenant hereunder. Any such assignment of Applicable Lawsthis Sublease shall contain an assumption by the assignee of all of the terms, directly covenants and conditions of this Sublease to be performed by the Subtenant. Sublandlord shall be deemed to be reasonably withholding its consent to a proposed assignee or indirectly sellsubtenant, hypothecateif, by way of example and not limitation, Subtenant is in default under the terms of the Sublease at the time of its request for such consent, or if Sublandlord, in its sole reasonable judgment, determines that such proposed subtenant or assignee is engaged in business which does not fit within the use restrictions, for the Sub-Premises.
C. In response to any request for Sublandlord’s consent to an assignment of this Sublease or a further subletting of the Sub-Premises, Sublandlord shall have the right, to be exercised in Sublandlord’s sole discretion, to terminate this Sublease as of the date the proposed sublease or assignment is to take effect and rent becomes payable thereunder, as if such date were the Expiration Date. Sublandlord shall exercise such right upon written notice to Subtenant delivered no later than thirty (30) days following Subtenant’s request for Sublandlord’s consent.
D. Subtenant hereby covenants and agrees that Subtenant shall not sublet or assign its interest in this Sublease unless Subtenant removes itself entirely from the Sub-Premises, and in any event, Subtenant shall not assign, pledgefurther sublet or transfer or hypothecate its interest hereunder, encumber to more than one (1) entity. In no event, however, shall any such assignment, subletting, transfer, hypothecation or otherwise transfer encumbrance relieve Subtenant of any of its obligations (for which it shall remain primarily liable) to Sublandlord hereunder, unless Sublandlord recaptures the Sub-Premises as provided for in this LeaseArticle. Subtenant hereby covenants and agrees not to further sublet or assign its interest herein to any business competitor of Sublandlord’s or Sublandlord’s successors and assigns, nor to violate any noncompetition provisions of any instrument to which either Prime Landlord or sublet Sublandlord is a party to with regard to the Premises Building or any part hereof portion thereof.
E. To the extent Prime Landlord charges Sublandlord for the its costs and expenses incurred in reviewing any proposed sublease or assignment, Subtenant shall reimburse Sublandlord for the cost of same within ten (each10) days following demand therefor as additional rent due hereunder.
F. Notwithstanding the foregoing to the contrary, a “Transfer”), without subject to Subtenant obtaining Prime Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; providedupon delivery to Sublandlord of prior written notice and an original fully-executed counterpart of an assignment in form and substance satisfactory to Sublandlord, however, that Tenant Subtenant shall have the one-time right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a sell by merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred Webley to herein as Parus so that Webley becomes a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any wholly-owned subsidiary of its obligations under this LeaseParus.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall A. Subtenant may not, either voluntarily without Sublandlord’s prior written consent, (i) assign, convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Subtenant’s interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, iv) permit the occupancy of the Premises or any part thereof by anyone other than Subtenant or its subsidiaries or affiliates (any of the foregoing herein defined as a “Transfer”). Sublandlord’s consent to an assignment of this Sublease or a further sublease of the Premises may not be unreasonably withheld, without delayed or conditioned. If Sublandlord consents to a proposed Transfer, Sublandlord will use reasonable efforts to obtain the consent of Prime Landlord. Any cost of obtaining Prime Landlord’s prior written consentconsent will be borne by Subtenant. Further, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have Subtenant will reimburse Sublandlord for any reasonable costs (including attorneys’ fees) incurred by Sublandlord in connection with any Transfer.
B. Subtenant has the right to assign all this Sublease or any portion of its interest under this Lease or further sublet all or any portion part of the Premises to a Related Entity without Sublandlord’s approval, but subject to Prime Landlord’s consent to any if such consent is required under the Prime Lease. A “Related Entity” means a parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoingsubsidiary, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Useaffiliate, or jeopardizing directly successor (by merger, consolidation, transfer of assets, assumption or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%otherwise) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by LandlordSubtenant.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Office Sublease (Walter Investment Management Corp)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (eachthereof, a “Transfer”)or permit or suffer the Premises or any part thereof to be used or occupied as work space, storage space, concession or otherwise by anyone other than Tenant or Tenant's employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock of Tenant (Tenant, provided that the assignee first executes, acknowledges and delivers to Landlord an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall agreement whereby the assignee agrees to be referred to herein as a “Subject Transfer”). Notwithstanding bound by all of the covenants and agreements in this Lease arising after the effective date of the transfer, then Landlord upon receipt of proof of foregoing, in no event shall Tenant be released from any of its obligations under this Leasewill consent to the assignment.
25.2. 25.3 In the event Tenant desires to effect assign, hypothecate or otherwise transfer this Lease or sublet the Premises or any part thereof to a Transfertransferee other than one set forth in Section 25.2, then, then at least twenty ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety forty-five (9045) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transferassignment or sublease, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall Landlord be deemed to be unreasonable for declining have approved the request. As a condition to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:covenants and agreements in this Lease.
(a) Tenant shall remain fully liable under 25.5 Any sale, assignment, hypothecation or transfer of this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value or subletting of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section Article 25 shall be voidvoid and shall, at the option of Landlord, terminate this Lease.
25.6. 25.6 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.7 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises, and Landlord as assignee of Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.8 Notwithstanding any Transfer, subletting or assignment Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.825.9 Any sublease of the Premises shall be subject and subordinate to the provisions of this Lease, shall not extend beyond the term of this Lease, and shall provide that the sublessee shall attorn to Landlord, at Landlord's sole option, in the event of the termination of this Lease. [Intentionally omitted]Landlord and any lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as this Lease.
25.9. If 25.10 In the event Tenant assigns, hypothecates or otherwise transfers this Lease or sublets the Premises or any potion thereofto a transferee other than one set forth in Section 25.2, Tenant hereby immediately and irrevocably assigns shall pay to Landlord, as security for Tenant’s obligations Additional Rent, fifty percent (50%) of the rent and other consideration received from the transferee during the term of this Lease in excess of Rent payable to Landlord under this Lease, all rent from after Tenant has recouped any reasonable commission, legal, improvement and other out-of-pocket expenses occasioned by such sublettingtransfer and payable to third parties, and appoints Landlord as assignee and attorney-in-fact after Tenant has recouped any expenses incurred for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until tenant improvements to the occurrence of a Default by Tenant, Tenant shall have transferred space constructed after the right to collect such rentTerm Commencement Date.
Appears in 1 contract
Samples: Lease (Cytel Corp/De)
Assignment or Subletting. 25.129.1. Except as hereinafter providedexpressly permitted, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, Lease or sublet the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all or any portion of its interest under this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in In no event shall Tenant be released from any perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of its obligations under this LeaseLandlord to lease premises at the Project or a property owned by Landlord or an affiliate of Landlord.
25.229.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Transfer Date”), Tenant shall provide written notice to Landlord (the “Assignment Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 41.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.329.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the PremisesPremises and (c) Landlord’s desire to exercise its rights under Section 29.8 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code; provided ”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that (a) Landlord agrees the rental or other amounts to reasonably evaluate any proposed transferee’sbe paid by the occupant, assignee’s , manager or sublessee’s financial qualifications other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (bz) Landlord may only consider such financial qualifications Tenant shall not consummate a Transfer with any person or in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any manner that could cause any portion of the Premisesamounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code.
25.429.4. As The following are conditions precedent to Landlord’s consent a Transfer or to Landlord considering a request by Tenant to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as an Exempt Transfer;
(d) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(ce) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(df) If a Transfer Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five fifty percent (2550%) of all of such excess to Landlord, prior to after making deductions for any transaction costs incurred by Tenant, including reasonable marketing expenses, tenant improvement allowancesfunds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rentrent actually paid by Tenant. If said such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(eg) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(fh) Any Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(gi) There Tenant shall exist no uncured Default or Imminent Default not then be in default hereunder of which Tenant has been given notice by Landlord.in any respect;
(hj) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to be the same as the Permitted Use;
(ik) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(jl) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(ko) A Tenant shall deliver to Landlord a list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.221.2.
25.529.5. Any Transfer that is not in compliance with the provisions of this Section 25 Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transfereevoid and shall, assignee or sublessee from obtaining at the option of Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under terminate this Lease.
25.729.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.829.7. [Intentionally omitted]If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease to a proposed transferee, assignee or sublessee other than as provided within Section 29.4, then Landlord shall have the option, exercisable by giving notice to Tenant at any time within ten (10) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the date specified in the Transfer Notice as the Transfer Date, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
25.929.8. If Tenant sublets the Premises or any potion portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (CymaBay Therapeutics, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, A. Tenant shall notnot (i) assign, either voluntarily convey or mortgage this Sublease or any interest under it; (ii) allow any transfer thereof or any lien upon Tenant's interest by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer this Lease, or law; (iii) further sublet the Premises or any part hereof thereof; or (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have iv) permit the right to assign all or any portion of its interest under this Lease or sublet all or any portion occupancy of the Premises without or any part thereof by anyone other than Tenant. Landlord’s 's consent to any parent, subsidiary an assignment of this Sublease or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a further sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require be unreasonably withheld, and if Landlord consents thereto, Landlord shall use reasonable efforts to obtain the consent of Prime Landlord provided that Landlord shall have no liability to Tenant for the failure to obtain such consent under any change to the Permitted Use;
(i) circumstances and Landlord shall not be bound obligated to expend any funds in order to obtain such consent. Any cost of obtaining Prime Landlord's consent shall be borne by Tenant. Any permitted sublease or assignment shall be subject to all of the terms and provisions of Section 14.1 of the Prime Lease; provided however, that Landlord shall not have any provision termination rights under Section 14.1(C) of the Prime Lease. Subject to the terms and provisions of Section 14.1(D) of the Prime Lease, if Tenant sublets any part of the Premises, then with respect to the space so subleased, Tenant shall pay to Landlord fifty percent (50%) of the positive difference, if any, between (i) all Subrent (as defined in the Prime Lease) paid by the subtenant to Tenant, less (ii) the sum of all Rent and additional rent allocable to the space sublet and all Permitted Transfer Costs (as defined in the Prime Lease) related to such sublease. Such amount shall be paid to Landlord on the same basis, whether periodic or in lump sum, that such Subrent is paid to Tenant by its subtenant. In calculating Landlord's share of any agreement pertaining periodic payments, all Permitted Transfer Costs shall be first recovered by Tenant.
B. No permitted assignment shall be effective and no permitted sublease shall commence unless and until any default by Tenant hereunder shall have been cured. No permitted assignment or subletting shall relieve Tenant from Tenant's obligations and agreements hereunder and Tenant shall continue to be liable as a principal and not as a guarantor or surety to the Transfer, except for Landlord’s written consent to the same;same extent as though no assignment or subletting had been made.
(j) C. Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials may enter into a Permitted Transfer (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy 14.1(F) of the Premises, all Prime Lease) without Landlord's prior written consent in accordance with the terms and provisions of Section 14.1(F) of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Prime Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Sublease (8x8 Inc /De/)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Lawslaw, directly or indirectly sell, hypothecate, assign, pledge, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent Landlord may shall not be unreasonably withhold; provided, however, that withheld or delayed.
25.2 If Tenant shall have the right desires to assign all or any portion of its interest under this Lease or sublet all or any portion part of the Premises without Landlord’s consent Premises, or to assign this Lease, to any parententity into which Tenant is merged, subsidiary with which Tenant is consolidated, or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that which acquires all or substantially all of the assets or stock shares of Tenant (Tenant, or to a parent, subsidiary, or other affiliate of Tenant, provided that the subtenant or assignee first executes, acknowledges and delivers to Landlord an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall agreement whereby the subtenant or assignee agrees to be referred bound by all of the covenants and agreements in this Lease to herein as a “Subject Transfer”). Notwithstanding the foregoingextent relating to the unexpired term of the 33 Lease and, in no the event shall Tenant of a sublease, the portion of the Premises so sublet, then the consent of Landlord to the sublease or assignment will not be released from any of its obligations under this Leaserequired.
25.2. 25.3 In the event Tenant desires to effect a Transferassign, thensublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee or sublessee other than one set forth in Section 25.2, then at least twenty fifteen (2015) days with respect to a sublease and at least thirty (30) days with respect to any other Transferdays, but not more than ninety (90) days in any eventdays, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “"Assignment Date”"), Tenant shall provide written give Landlord a notice to Landlord (the “"Assignment Notice”") containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; , and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by assignment or sublease.
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s 's performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the PremisesPremises which would involve the generation, storage, use, treatment or disposal of Hazardous Materials. If Landlord fails to deliver written notice of its determination to Tenant within fifteen (15) days following receipt of the Assignment Notice and the information required under Section 25.3, Landlord shall be deemed to have approved the request. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer transfer to a transferee, assignee or sublessee successor of poor reputation, lacking financial qualificationsqualification, seeking a change in use which would involve the Permitted Usegeneration, storage, use, treatment or jeopardizing directly disposal of Hazardous Materials in any manner for a purpose prohibited by any applicable Law, so long as Landlord is reasonable in making its determination based on such factors. Any refusal to consent to such assignment or indirectly sublease shall be in writing and shall state in detail the status of Landlord reason for Landlord's failure to approve the assignment or sublease. As a condition to any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occurwhich Landlord has given consent, Tenant would no longer occupy any portion of such assignee or sublessee must execute, acknowledge and deliver to Landlord an agreement whereby the Premises.
25.4. As conditions precedent assignee or sublessee agrees to Landlord’s consent to a Subject Transfer, Landlord may require any or be bound by all of the following:
(a) Tenant shall remain fully liable under covenants and agreements in this Lease during to the extent relating to the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status term of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree thatLease and, in the event Landlord gives such proposed transfereeof a sublease, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder the portion of which Tenant has been given notice by Landlordthe Premises so sublet.
(h) Such proposed transferee25.5 Notwithstanding the foregoing, assignee Tenant shall have the right to enter into license or sublessee’s other usage agreements for the use of the Premises shall by third parties without Landlord's consent, provided such agreements do not require any change to entail the Permitted Use;
(i) Landlord shall not be bound by any provision creation of any agreement pertaining to a separate common corridor for the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2licensee.
25.5. 25.6 Any Transfer sale, assignment, hypothecation or transfer of this Lease or subletting of Premises that is not in compliance with the provisions of this Section Article 25 shall be void.
25.6. 25.7 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of 34 Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability liability.
25.8 If Tenant shall sublet the Premises or any part thereof Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Premises and Landlord as assignee, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, before the occurrence and after the subsequent cure of a default in the payment of Basic Annual Rent by Tenant, Tenant shall have the right to collect such rent.
25.7. 25.9 Notwithstanding any Transfersubletting or assignment, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due due, or to become due hereunder, and for the full performance of all other terms, conditions conditions, and covenants to be kept and performed by Tenant. The acceptance of Rent rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant covenant, or condition thereofhereof, from any other person or entity other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any Transfersubletting or assignment of the Premises. Landlord shall not withhold consent to an assignment back to the original Tenant hereunder from a subsequent assignee.
25.8. [Intentionally omitted]
25.9. If Tenant sublets 25.10 Any sublease of the Premises or any potion thereofshall be subject and subordinate to the provisions of this Lease, Tenant hereby immediately shall not extend beyond the term of this Lease, and irrevocably assigns shall provide that the sublessee shall attorn to Landlord, as security for Tenant’s obligations under at Landlord's sole option, in the event of the termination of this Lease, all rent from . Landlord and any such subletting, lender shall upon Tenant's request provide any subtenant of the entirety of the Premises with a recognition and appoints nondisturbance agreement in the form set forth in Article 35 hereof on the condition that the sublessee agrees to attorn to Landlord on exactly the same terms and conditions as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Globix Corp)
Assignment or Subletting. 25.1. 25.1 Except as hereinafter provided, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecatelaw, assign, pledgesell, encumber hypothecate or otherwise transfer this Lease, or sublet the Premises or any. part thereof, or permit or suffer the Premises or any part hereof (eachthereof to be used or occupied as work space, a “Transfer”)storage space, concession or otherwise by anyone other than Tenant or Tenant’s employees, without Landlord’s the prior written consentconsent of Landlord in each instance, which consent shall not be unreasonably withheld, delayed or conditioned. Landlord may agrees not to unreasonably withhold; provided, however, that Tenant shall have the right withhold consent to assign all or any portion such assignment of its interest under this Lease or sublet subletting of all or any portion of the Premises provided that Tenant requests the same in writing and provided that (i) at the time thereof; Tenant is not in default under this Lease, (ii) Landlord, in its reasonable discretion, determines that the reputation, business, proposed use of the Premises and financial responsibility of the proposed assignee or sublessee, are commercially reasonable, (iii) any assignee or sublessee shall expressly assume all the obligations of this Lease on Tenant’s part to be performed, or in the case of a sublease of less than all of the Premises, assume such obligations with respect to the relevant portion of the Premises, (iv) such consent, if given, shall not release Tenant or any guarantor of Tenant’s obligation hereunder of any of its obligations under this Lease, including without limitation, its obligation to pay Rent, and (v) Tenant shall indemnify and hold Landlord harmless from any brokerage commissions due in connection with such assignment or subletting by virtue of Tenant’s actions. Whether or not such conditions to assignment or subletting are met, Landlord, at its sole option, may elect to (x) terminate this Lease in the case of an assignment, or, (y) in the event of a sublease, the term of which ends during the last year of the Term, terminate this Lease with respect to the portion of the Premises subject to the proposed sublease, on the first day of the second calendar month next succeeding receipt of Tenant’s written request for consent to any parentassignment or subletting, subsidiary to be effective unless Tenant elects to withdraw its request to sublease or affiliate assign, which election, if exercised by Landlord, shall be by written notice to Tenant given within twenty (20) days of receipt by Landlord of Tenant; ’s request for such consent to assign or sublet. If Landlord elects to terminate this Lease in accordance with the foregoing sentence, then Landlord may lease the relevant portion of the Premises to the sublessee or assignee proposed by Tenant or any party that results from a merger other person or consolidation entity.
25.2 Notwithstanding any provision in this Lease, Tenant may, without the consent of Tenant; Landlord, assign, transfer or sublet this Lease or all or any party that part of the Premises to any entity substantially owned or controlled by Tenant, is under common control or ownership with Tenant, or owns or controls, directly or indirectly, the stock and assets of Tenant or into which Tenant is merged, with which Tenant is consolidated, or which acquires all or substantially all of the assets of Tenant, provided that (i) the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease, and (ii) Tenant, as assignor or stock transferor, shall remain liable for performance of Tenant all obligations under the Lease (an “Allowable Permitted Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. 25.3 In the event Tenant desires to effect assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises to an assignee or subtenant other than a Permitted Transfer, then, then at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer assignment or sublease to be effective (the “Assignment Date”), Tenant shall provide written give Landlord a notice to Landlord (the “Assignment Notice”) containing which shall set forth the name, address and business of the proposed assignee or sublessee, information (including referencesreferences and financial statements) concerning the character reputation and financial ability of the proposed transferee, assignee or sublessee; , the Assignment Date; , and any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by .
25.4 Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining making its determination as to whether consent should be given to a proposed Subject Transferassignment or sublease, may give consideration to the reputation of a proposed successor, the financial strength of such transferee, assignee or sublessee successor (notwithstanding Tenant the assignor remaining liable for Tenant’s performance), and any change in use that which such transferee, assignee or sublessee successor proposes to make in the use of the Premises. In no event If Landlord fails to deliver written notice of its determination to Tenant within twenty (20) days of the Landlord’s receipt of the Assignment Notice (with the required information), Landlord shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in have approved the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premisesrequest.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. 25.5 The consent by Landlord to a Transfer an assignment or subletting shall not relieve Tenant or proposed transferee, any assignee of this Lease or sublessee of the Premises from obtaining Landlord’s the consent of Landlord to any further Subject Transfer, nor shall it release assignment or subletting or as releasing Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Leaseliability.
25.7. Notwithstanding any Transfer, Tenant 25.6 Any sublease of the Premises shall remain fully be subject and primarily liable for the payment of all Rent and other sums due or subordinate to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets Lease, shall not extend beyond the Premises or any potion thereofterm of this Lease, Tenant hereby immediately and irrevocably assigns shall provide that the sublessee shall attorn to Landlord, as security for Tenantat Landlord’s obligations under sole option, in the event of the termination of this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Lease (Ligand Pharmaceuticals Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, All assignments of this Lease or sublease or subleases of the Premises by Tenant shall notbe subject to and in accordance with all of the provisions of this Section. Tenant may not assign this Lease or sublease the Premises, either voluntarily in whole or in part, to a wholly-owned corporation or controlled subsidiary of Tenant or to a party other than a wholly-owned corporation or controlled subsidiary of Tenant without first having obtained the written consent of Landlord, such consent not to be unreasonably withheld. Any assignment or sublease by operation Tenant shall be only for the purpose specified in Section 1.4, Use of Applicable LawsPremises, directly and for no other purpose, and in no event shall any assignment or indirectly sell, hypothecate, assign, pledge, encumber sublease of the Premises release or otherwise transfer relieve Tenant from any obligations of this Lease, or sublet . In the Premises or any part hereof (each, a “Transfer”), without Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, event that Tenant shall have the right seek Landlord's permission to assign all or any portion of its interest under this Lease or sublet all or any portion the Premises, Tenant shall provide to Landlord the name, address, financial statement and the business experience resume for the immediately preceding ten (10) years of the Premises without proposed assignee or subtenant and such other information concerning such proposed assignee or subtenant as Landlord may require. This information shall be in writing and shall be received by Landlord no less than thirty (30) days prior to the effective date of the proposed assignment or sublease. It shall be a condition to any consent by Landlord to an assignment or sublease that Tenant shall pay to Landlord a processing fee in the amount of One Hundred Fifty and No/100 Dollars ($150.00) or one percent (1%) of the annual Rent, whichever is greater, as reimbursement to Landlord for any and all legally-related expenses in connection with the review and preparation of assignment or sublease-related documents which may be incurred by Landlord in connection therewith. Payment of such fee shall be submitted along with Tenant's request for Landlord’s 's consent. Any consent by Landlord to any assignment or sublease, or to the operation of a concessionaire or licensee, shall not constitute a waiver or the necessity for such consent to any parentsubsequent assignment or sublease, subsidiary or affiliate operation by a concessionaire or licensee. If Tenant is a corporation and any transfer, sale, pledge or other disposition of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all more than ten percent (10%) of the assets common stock shall occur, or voting control or power to vote the majority of the outstanding capital stock be changed, such action shall be deemed an assignment under the terms of Tenant (an “Allowable Transfer”)this Lease and shall be subject to all the terms and conditions thereof. Any Transfer other than an Allowable Transfer breach of the assignment clause by Tenant will constitute a default tinder the terms of this Lease and Landlord shall be referred have all rights and remedies available to herein it as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2set forth herein. In the event Tenant desires shall sublease the entire Premises for rentals in excess of those rentals payable hereunder, Tenant shall pay to effect a TransferLandlord, thenas Additional Rent hereunder, at least twenty all such excess rentals. Any proposed assignee or subtenant of Tenant shall assume Tenant's obligations hereunder and deliver to Landlord an assumption agreement in form satisfactory to Landlord no less than ten (2010) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the effective date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; assignment. Notwithstanding any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transferforegoing provisions, all if Tenant is or has been at any time in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and default under any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee terms of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee may not assign or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of sublet the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing in whole or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2part.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Samples: Warehouse Lease (Maxxis Group Inc)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant 11.1 Lessee shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not assign this Lease, or any interest herein, or sublet or allow any other person, firm, or corporation to use or occupy the Premises Premises, or any part hereof thereof, without the prior written consent of Lessor, which consent will not be unreasonably withheld, conditioned or delayed, except Lessee may assign this Lease to a corporation, partnership, limited liability company, other entity or individual which controls, is controlled by, or is under common control with, Lessee (each, a “Transfer”"Affiliate"), without Landlord’s prior written Lessor's consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant Lessee shall ensure that Lessor receives at the time of such assignment Lessee's written notice thereof, a true and correct copy of the assignment instrument, the written undertaking by such assignee to observe and perform all of the terms and conditions of this Lease, and a reasonable fee (including reasonable attorneys' fees but not more than $1,000.00) for Lessor's processing thereof. "Control" means the right to exercise at least twenty percent (20%) of the voting power of an entity to which such "control" criterion is applied. Lessor shall have the right to assign all make such investigations as it deems reasonable and necessary in determining the acceptability of the proposed assignee or any portion subtenant. Such investigations may include inquiries into the financial background, business history, capability of the proposed assignee or subtenant in its line of business, and the quality of its interest under operations. Under no circumstances shall Lessor be obligated to consent to the assignment of this Lease or sublet all or any portion the subletting of the Premises without Landlord’s to any entity whose operations violate the Protective Covenants. Lessee shall provide to Lessor such information as Lessor may reasonably require to enable it to determine the acceptability of the proposed assignee or subtenant, including information concerning all of the foregoing matters, and Lessor shall have no obligation to consent to any parentassignment or subletting unless it has received from Lessee, subsidiary at no cost or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all expense to Lessor, the most recent audited financial statements of the assets proposed assignee or subtenant a copy of the proposed sublease or assignment agreement, to be followed by a copy of the fully executed document, and such other information as Lessor reasonably requires. For purposes of this Section 11, an assignment of stock of Tenant (an “Allowable Transfer”). Any Transfer or other than an Allowable Transfer ownership interest in Lessee shall be referred to herein as a “Subject Transfer”)deemed an assignment within the meaning of and be governed by this Section. Notwithstanding No assignment or subletting, be it with or without the foregoingconsent of Lessor, in no event shall Tenant be released release Lessee from any of its obligations under this Lease.
25.2. In Unless consented to by Lessor, Lessee shall not permit this Lease or any interest herein or in the event Tenant desires tenancy hereby created to effect become vested in or owned by any other person, firm, or corporation by operation of law or otherwise. The power of Lessor to give or withhold its consent to any assignment or subletting shall not be exhausted by the exercise thereof on one or more occasions, but shall be a Transfer, then, at least twenty (20) days with respect to a sublease continuing right and at least thirty (30) days power with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character type of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease subletting. Lessor consents to occurAllergy Supexxxxxx.xxx, Tenant would no longer occupy any portion of the PremisesXxc.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer 's joint occupancy of the Premises provides for the receipt by, on behalf of in whole or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlordpart with Lessee.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant shall not, not either voluntarily or by operation of Applicable Lawslaw assign, directly or indirectly sell, hypothecateencumber, assign, pledge, encumber pledge or otherwise transfer this Leaseall or any part of Tenant’s leasehold estate hereunder, or permit the Premises to be occupied by anyone other than Tenant or Tenant’s employees, or sublet the Premises, or any portion thereof, without obtaining, in each such instance, Landlord’s prior written consent. Any such assignment or other transfer or subletting shall be subject in each instance to the recapture option of Landlord’s consent shall not be unreasonably withheld. Landlord’s subjective determination of the financial soundness of the proposed assignee shall be conclusive. Consent by Landlord to one or more assignments of this Lease or to one or more sublettings of the Premises shall not operate to exhaust Landlord’s rights under this Article. Tenant agrees to reimburse Landlord for Landlord’s reasonable cost and attorneys’ fees incurred in conjunction with the processing and documentation of any assignment or subletting under this Lease or Tenant’s interest in and to the Premises. If Tenant desires at any time to assign this Lease or to sublet the Premises or any part hereof portion thereof, it shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (each, a “Transfer”), without i) the name of the proposed subtenant or assignee; (ii) the nature of the proposed subtenant’s or assignee’s business to be carried on the premises; (iii) the terms and provisions of the Provisions of the proposed sublease or assignment; and (iv) such reasonable financial information as Landlord may request concerning the proposed subtenant or assignee. Any request for Landlord’s prior written consent, which consent Landlord may not unreasonably withhold; provided, however, that Tenant shall have the right to assign all approval or any portion of its interest under this Lease a sublease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer assignment shall be referred accompanied with a check in such reasonable amount as Landlord shall advise for the cost of initial review and/or preparation of any documents relating to herein as a “Subject Transfer”). Notwithstanding the foregoing, such proposed transfer but in no event less than $200.00. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of its obligation to pay rent and perform all other obligations to be released performed by Tenant hereunder. The acceptance of rent by Landlord from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but person shall not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of waiver by Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a to be consent to any Transferassignment or subletting.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, 19.01 Tenant shall not, either voluntarily agrees not to assign or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledgein any manner mortgage, encumber or otherwise transfer this LeaseLease or any interest in this Lease without the previous written consent of Landlord, or and not to sublet the Premises or any part hereof (eachof the premises or allow anyone to use or to come in with, a “Transfer”), through or under it without Landlord’s prior written like consent, which consent Landlord may not unreasonably withhold; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. In no event may Tenant shall have the right to assign all or otherwise transfer this Lease or any portion interest in this Lease at any time while in default hereunder. One such consent will not be deemed a consent to any subsequent assignment, subletting, occupation, or use by any other person. Any merger or sale of its stock of a corporate tenant, or of partnership interests in a partnership tenant, or of membership interests in a limited liability company, involving the transfer of fifty percent (50%) or more of the ownership interest of such tenant as of the date of this Lease shall be considered an assignment or subletting of this Lease or the Premises for purposes of this Section 19. So long as Tenant is not in default under this Lease beyond applicable notice and cure periods, Tenant may, however, assign this Lease to a corporation with which it may merge or sublet all or any portion of the Premises without Landlord’s consent consolidate, to any parent, affiliate or subsidiary of Tenant or affiliate subsidiary of Tenant; ’s parent, or any party that results from to a merger or consolidation purchaser of substantially all of Tenant; ’s assets if the assignee has assets and creditworthiness substantially equal to or greater than Tenant and if the assignee executes an agreement required by Landlord assuming Tenant’s obligations and if Guarantor ratifies its obligations under the Guaranty after such assignment. In the absence of a written agreement to the contrary, there shall be no release of the Tenant and/or Guarantor. The acceptance of rent from an assignee, subtenant or occupant will not constitute a release of Tenant from the further performance of the obligations of Tenant contained in this Lease.
19.02 If Tenant assigns all its rights and interests under this Lease, the assignee under such assignment shall expressly assume all the obligations of Tenant hereunder in an instrument, approved by Landlord as to form and substance (which approval will not be unreasonably withheld or delayed), delivered to Landlord at the time of such assignment. No assignment or sublease made as permitted by this Section 19.02 shall affect or reduce any party of the obligations of Tenant hereunder, and all such obligations shall continue in full effect as obligations of a principal and not as obligations of a guarantor or surety, to the same extent as though no assignment or subletting had been made, provided that acquires performance by any such assignee or sublessee of any of the obligations of Tenant under this Lease shall be deemed to be performance by Tenant. No sublease or assignment made as permitted by this Section 19.02 shall impose any obligations on Landlord or otherwise affect any of the rights of Landlord under this Lease. Neither this Lease nor the term hereby demised shall be mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of the Premises or the rentals payable thereunder. Any mortgage, pledge, sublease or assignment made in violation of this Section 19.02 shall be void. Tenant shall, within ten days after the execution and delivery of any such assignment or the sublease of all or substantially all of the assets Premises, deliver a conformed copy thereof to Landlord. Within ten days after the execution and delivery of any sublease of a portion of the Premises, Tenant shall give notice to Landlord of the existence and term thereof, and of the name and address of the subtenant thereunder.
20.01 Subject to Section 20.02 below, all fixtures, machinery, equipment, improvements and appurtenances attached to, or stock built into, the Premises at the commencement of, or during the Term, including overhead cranes installed as of the Commencement Date (but not any replacements of such overhead cranes), excepting those placed there by or at the expense of Tenant, shall become and remain a part of the Premises; shall be deemed the property of Landlord, without compensation or credit to Tenant; and shall not be removed by Tenant at the Expiration Date unless Landlord requests their removal.
20.02 All movable non-structural partitions, business and trade fixtures, machinery and equipment, communications equipment and office equipment, that are installed in or affixed to the Premises by, or for the account of, Tenant without expense to Landlord and that can be removed without structural damage to the Premises, any overhead crane which is installed after the Commencement Date whether or not replacing an existing crane and related infrastructure installed by Tenant, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (collectively, the “Tenant’s Property”) shall be and shall remain the property of Tenant and may be removed by Tenant at any time during the Term, provided Tenant repairs or pays the cost of repairing any damage to the Premises resulting from the removal thereof. At or before the Expiration Date, or the date of any earlier termination, Tenant, at its expense, shall remove from the Premises all of Tenant’s Property (an “Allowable Transfer”except such items thereof as Landlord shall have expressly permitted, in writing, to remain, which property shall become the property of Landlord), and Tenant shall repair any damage to the Premises or the Premises resulting from removal of Tenant’s Property. Any Transfer other items of Tenant’s Property that shall remain in the Premises for more than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transferafter the Expiration Date, but not or more than ninety thirty (9030) days in any eventfollowing an earlier termination date, prior to may, at the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character option of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transfereehave been abandoned, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change and in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Leasecase, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall items may be received retained by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee as its property or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder disposed of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.
Appears in 1 contract
Assignment or Subletting. 25.1. Except as hereinafter provided, (a) Tenant shall not, either not (and shall not permit any Person) voluntarily or involuntarily, by operation of Applicable Lawslaw or otherwise: (i) transfer, directly or indirectly sellassign, mortgage, encumber, pledge, hypothecate, assign, pledge, encumber or otherwise transfer assign all or any of its interest in this Lease, or (ii) sublet or permit the Premises Premises, or any part hereof thereof, to be used by others including, but not limited to concessionaires or licensees, or (each, a “Transfer”iii) issue new stock (or partnership shares or membership interests), create additional classes of stock (or partnership shares or membership interests), or sell, assign, hypothecate or otherwise transfer the outstanding voting stock (or partnership shares or membership interests) so as to result in a change in the present control of Tenant or any permitted Transferee, provided, however, that this subparagraph (iii) shall not be applicable to Tenant if it is a publicly owned corporation whose outstanding voting stock is listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded actively in the over-the-counter market, or (iv) sell, assign or otherwise transfer all or substantially all of Tenant’s or any permitted Transferee’s assets; without the prior consent of Landlord’s prior written consent, in each instance, which consent Landlord may withhold in its sole and absolute discretion. All of the foregoing transactions shall be referred to collectively or singularly as a “Transfer”, and the Person to whom Txxxxx’s interest is transferred shall be referred to as a “Transferee.”
(b) Any Transfer without Landlord’s consent shall not unreasonably withhold; providedbe binding upon Landlord, howeverand shall confer no rights upon any third Person. Each such unauthorized Transfer shall, that without notice or grace period of any kind, constitute a Default by Tenant shall have the right to assign all or any portion of its interest under this Lease. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Section shall not be deemed to be a consent by Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a release of Tenant from the performance of any covenants herein contained, or a waiver by Landlord of any remedy of Landlord under this Lease, although amounts actually received shall be credited by Landlord against Tenant’s Rent obligations. Consent by Landlord to any one Transfer shall not constitute a waiver of the requirement for consent to any other Transfer. No reference in this Lease to assignees, concessionaires, subtenants or sublet all or any portion licensees shall be deemed to be a consent by Landlord to the occupancy of the Premises without by any such assignee, concessionaire, subtenant or licensee.
(c) Landlord’s consent to any parentTransfer shall not operate as a waiver of, subsidiary or release of Tenant from, Txxxxx’s covenants and obligations hereunder; nor shall the collection or acceptance of Rent or other performance from any Transferee have such effect. Rather, Tenant shall remain fully and primarily liable and obligated under this Lease for the entire Term in the event of any Transfer, and in the event of a Default by the Transferee, Landlord shall be free to pursue Tenant, the Transferee, or both, without prior notice or demand to either.
(d) Tenant shall reimburse Landlord for attorney’s fees and any other out-of-pocket expenses incurred by Landlord involved with the review, processing or preparation of any documentation in connection with a Transfer, whether or not Landlord’s consent to such Transfer is required or obtained.
(e) Upon Tenant’s request for approval for any Transfer, Landlord may elect to terminate this Lease by notice to Tenant, which termination shall be effective on the date set forth in such notice, but no earlier than sixty (60) days after the date of that notice.
(f) In the event of a Transfer by Tenant, Tenant shall pay to Landlord, as Additional Rent, as and when received by Txxxxx, an amount equal to the difference between (i) all sums paid to Tenant or its agent by or on behalf of such Transferee, and (ii) the Monthly Base Rent and Additional Rent paid by Tenant under this Lease and attributable to the portion of the Premises that is the subject of such Transfer
(g) Notwithstanding anything in the foregoing to the contrary, Lxxxxxxx’s consent shall not be required with respect to any Transfer to any of the following types of entities (each an “Permitted Transferee”): (a) an entity that results from an organizational change of Tenant or the division of Tenant into two or more entities; (b) an affiliate of Tenant, meaning any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Tenant; (c) an entity with which Tenant or its corporate successors has merged or consolidated in accordance with applicable statutory provisions governing merger and consolidation of business entities; or any party that results from a merger or consolidation of Tenant; or any party that (d) an entity which acquires all or substantially all of the assets or stock membership interest of Tenant (an “Allowable Transfer”Landlord is expressly aware that Tenant is subject to a binding agreement whereby ownership of Tenant shall transfer 100% to Danam Health Inc. during the course of the Term); provided that, in each such case: (a) any such Transfer to a Permitted Transferee is not undertaken primarily for the purpose of avoiding the restrictions on Transfer contained in this Section 7; and (b) Tenant’s obligations hereunder are assumed in writing by any such Permitted Transferee to which this Lease is Transferred. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder. Any such Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Use of the Premises limitation contained in this Lease. No later than ten (10) days after the effective date of any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations permitted under this Lease.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”Section 7(g), Tenant shall provide written notice furnish to Landlord Landlord: (1) copies of any instrument effecting such Transfer; (2) documentation establishing the “Assignment Notice”) containing information (including references) concerning the character satisfaction of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant requirements and the proposed transferee, assignee or sublesseeconditions set forth herein; and the consideration and all other material terms and conditions (3) evidence of the proposed Transfer, all in such detail insurance as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord required under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant Transfer pursuant to this Section 7(f) shall have the right not waive Landlord’s rights as to collect such rentany subsequent Transfer.
Appears in 1 contract
Samples: Lease (Wellgistics Health, Inc.)
Assignment or Subletting. 25.1. Except as hereinafter provided, Tenant 11.1 Lessee shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise transfer not assign this Lease, or any interest herein, or sublet or allow any other person, firm, or corporation to use or occupy the Premises Premises, or any part hereof (each, a “Transfer”)thereof, without Landlord’s the prior written consentconsent of Lessor, which consent Landlord may will not be unreasonably withhold; provided, however, that Tenant withheld or delayed. Lessor shall have the right to assign make such investigations as it deems reasonable and necessary in determining the acceptability of the proposed assignee or subtenant. Such investigations may include inquiries into the financial background, business history, capability of the proposed assignee or subtenant in its line of business, and the quality of its operations. Under no circumstances shall Lessor be obligated to consent to the assignment of this Lease or the subletting of the Premises to any entity whose operations violate the restrictive covenants described in Section 26 hereof. Lessee shall provide to Lessor such information as Lessor may reasonably require to enable it to determine the acceptability of the proposed assignee or subtenant, including information concerning all of the foregoing matters, and Lessor shall have no obligation to consent to any assignment or subletting unless it has received from Lessee (at no cost or expense to Lessor) the most recent audited financial statements of the proposed assignee or subtenant a copy of the proposed sublease or assignment agreement, (to be followed by a copy of the fully executed document), and such other information as Lessor reasonably requires. No assignment or subletting (with or without the consent of Lessor) shall release Lessee from its obligations under this Lease nor shall Lessee permit this Lease or any portion interest herein or in the tenancy hereby created to become vested in or owned by any other person, firm, or corporation by operation of law or otherwise. The power of Lessor to give or withhold its interest under consent to any assignment or subletting shall not be exhausted by the exercise thereof on one or more occasions, but shall be a continuing right and power with respect to any type of transfer, assignment or subletting. Sale of assets substantially all of the stock or assets of tenant will not be considered an assignment for the provision of this section.
11.2 If Lessee shall assign this Lease or sublet all or any portion of the Premises without Landlord’s consent to in any parentway not authorized by the terms hereof, subsidiary or affiliate the acceptance by Lessor of Tenant; or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of the assets or stock of Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released Amount Due from any of its obligations under this Lease.
25.2. In the event Tenant desires to effect a Transferperson claiming as assignee, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease otherwise shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If construed as a Transfer of the Premises provides for the receipt by, on behalf recognition of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder of which Tenant has been given notice by Landlord.
(h) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change to the Permitted Use;
(i) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing assignment or relating to the Transfer; and
(k) A list of Hazardous Materials (subletting or as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If Tenant sublets the Premises or any potion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenant, Tenant shall have the right to collect such rent.of Lessor thereafter to
Appears in 1 contract
Samples: Lease (Fundtech LTD)
Assignment or Subletting. 25.1. Except as hereinafter providedA. Subject to Section 56(d) below, Tenant shall not, either voluntarily or by operation of Applicable Laws, directly or indirectly sell, hypothecate, not assign, pledge, encumber mortgage or otherwise transfer pledge this Lease, nor underlet or sublet sublease the Premises or any part hereof thereof without the written consent of Landlord first had and obtained, which consent shall not be unreasonably withheld, conditioned or delayed and subject to any necessary consent of any mortgagee of the Premises; nor after such written consent has been given shall any assignee or sublessee assign, mortgage or pledge this Lease or such sublease, or underlet or sublease the Premises or any part thereof, including, without limitation, any collateral re-assignment, mortgage or pledge of this Lease in favor of the previous tenant hereunder, without an additional written consent by Landlord and such mortgagee. No assignment or sublease, whether or not consented to in the manner aforesaid, shall in any way relieve or release Tenant from liability upon any of the covenants of this Lease, and notwithstanding any such assignment or sublease, the responsibility and liability of Tenant hereunder shall continue in full force and effect until the expiration of the Term.
B. If this Lease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, Landlord shall have the right, in its sole discretion, to collect rent from the assignee, sublessee or occupant, and apply the amount collected to the Rent payable hereunder; but no such collection shall be deemed a waiver of this covenant against assignment and subletting, or the acceptance of the assignee, sublessee or occupant as Tenant.
C. If Tenant shall desire to assign this Lease or to sublet the Premises in whole or in part, Tenant shall submit to Landlord the following information, accompanied by a written request for Landlord's consent to such assignment or subletting: (eachi) the name and address of the proposed assignee or subtenant; (ii) a description identifying the space to be sublet and Tenant's improvements included therein; (iii) the terms and conditions of the proposed assignment or subletting; (iv) the nature and character of the business of the proposed assignee or subtenant; and (v) current financial information and any other information Landlord may reasonably request with respect to the proposed assignee or subtenant. In connection with any assignment, underletting or sublease for which consent is sought, the following additional conditions shall be fulfilled:
(i) An Event of Default shall not then, or at the time such assignment or subletting shall become effective, have occurred and be continuing.
(ii) In case of a subletting, it shall be expressly subject to all of the obligations of Tenant under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred to the subleased premises or further sublet by the sublessee in whole or in part, or any part thereof suffered or permitted by the sublessee to be used or occupied by others, without the prior written consent of Landlord in each instance.
D. Every subletting hereunder is subject to the express condition, and by accepting a sublease hereunder each subtenant shall be conclusively deemed to have agreed that, if this Lease should be terminated prior to the end of the stated term or any renewal term hereof, or if Landlord shall succeed to Tenant's estate in the Premises, then at Landlord's election the subtenant shall attorn to and recognize Landlord as subtenant's landlord under the sublease and the subtenant shall promptly execute and deliver any instruction Landlord may reasonably request to evidence such attornment.
E. Notwithstanding anything to the contrary hereinabove set forth, no assignment of this Lease shall be binding upon Landlord unless the assignee shall execute and deliver to Landlord an agreement, in recordable form, whereby such assignee agrees unconditionally to be bound by and to perform all of the obligations of Tenant hereunder and further expressly agrees that, notwithstanding such assignment, the provisions of this Article shall continue to be binding upon such assignee with respect to all future assignments and transfers. A failure or refusal of such assignee to execute or deliver such an agreement in recordable form shall not release the assignee from its liability for the obligations of Tenant hereunder assumed by acceptance of the assignment of this Lease.
F. As a condition to any assignment or sublease being effective as against Landlord, a “Transfer”)fully executed copy of the assignment or sublease shall be delivered to Landlord before its effective date.
G. Tenant further agrees, if there shall be a consent to a proposed assignment or subletting under the provisions of this Article, and if Tenant shall receive from its assignee any consideration for the assignment, howsoever designated, or shall receive from its subtenant any sublet rental, howsoever designated, which exceeds the rental provided for hereunder, either on a monthly basis or in the aggregate, or both, including, but not limited to, all sums paid for the sale or rental of said assignor or sublessor Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property, Landlord shall not be entitled to receive any portion of any sums received by Tenant, which sums shall be the sole and exclusive property of Tenant.
H. Subject to Subparagraph I hereof and notwithstanding anything contained in this Article to the contrary, in the event that Tenant desires to sublease the Premises or assign this Lease to any other party, the terms and conditions of such sublease or assignment shall be communicated to Landlord in writing at least fifteen (15) days prior to the effective date of any such sublease or assignment, and Landlord shall have the option, exercisable in writing to Tenant within fifteen (15) days after Landlord's receipt of said communication, to recapture the Premises which is the subject of the proposed sublease, and, at the option of Landlord, to enter into a lease with such prospective sublessee or assignee, so that such party shall then become the direct tenant of Landlord hereunder. In the event of such recapture, this Lease shall terminate as to the space recaptured as of the date thereof, except for any obligations of Tenant arising prior to such termination or intended by their terms to survive such termination. Notwithstanding the foregoing, in the event Landlord elects to recapture the Premises, Tenant shall have the right to negate said recapture by giving Landlord notice, within ten (10) days following the date Tenant receives notice from Landlord of its election to recapture, that Tenant elects to withdraw its aforesaid request to assign or sublet, in which event this Lease shall continue in full force and effect.
(a) Notwithstanding any contrary provision of this Article 56, the following actions may be taken without the consent of Landlord: (i) Tenant shall have the absolute right to sublet, assign or otherwise transfer its interest in this Lease to a licensee, franchisee or any parent or operating subsidiary of Tenant, or subsidiary of Tenant's parent, or to a corporation with which it has committed to merge or consolidate, without Landlord’s prior 's approval, written consent, which consent Landlord may not unreasonably withholdor otherwise; provided, however, that (ii) Tenant shall have the right to assign all or any portion of its interest under sublet this Lease or sublet all or any portion of the Premises without Landlord’s consent to any parent, subsidiary or affiliate an Affiliate of Tenant; and otherwise grant a security interest in this Lease to a bank, insurance company or any party that results from a merger or consolidation of Tenant; or any party that acquires all or substantially all of other recognized institutional lender (the assets or stock of "Secured Creditor"), as collateral security for the performance by Tenant (an “Allowable Transfer”). Any Transfer other than an Allowable Transfer shall be referred to herein as a “Subject Transfer”). Notwithstanding the foregoing, in no event shall Tenant be released from any of its obligations under this Leaseto Secured Creditor in connection with Tenant's financing but no such assignment, subletting or transfer shall relieve Tenant of its obligations hereunder.
25.2. In the event Tenant desires to effect a Transfer, then, at least twenty (20) days with respect to a sublease and at least thirty (30) days with respect to any other Transfer, but not more than ninety (90) days in any event, prior to the date when Tenant desires the Transfer to be effective (the “Assignment Date”), Tenant shall provide written notice to Landlord (the “Assignment Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Assignment Date; any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require. Tenant shall reimburse Landlord for all reasonable attorneys’ fees and other reasonable out-of-pocket costs incurred by Landlord in reviewing Tenant’s request for such Transfer.
25.3. Landlord, in determining whether consent should be given to a proposed Subject Transfer, may give consideration to the financial strength of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), and any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications, seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Code; provided that (a) Landlord agrees to reasonably evaluate any proposed transferee’s, assignee’s or sublessee’s financial qualifications and (b) Landlord may only consider such financial qualifications in the event that, were the transfer, assignment or sublease to occur, Tenant would no longer occupy any portion of the Premises.
25.4. As conditions precedent to Landlord’s consent to a Subject Transfer, Landlord may require any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired Term;
(b) Tenant shall provide Landlord In connection with evidence reasonably satisfactory to Landlord that the value of Landlord’s any mortgage, assignment or other security interest under this Lease shall not be diminished or reduced by the proposed Subject Transfer. Such evidence shall include, without limitation, evidence respecting the relevant business experience and financial responsibility and status in favor of the proposed transfereeSecured Creditor, assignee Landlord will execute and deliver any consents, waivers or sublessee;
(c) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including, without limitation, reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(d) If a Transfer of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including, without limitation, a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay twenty-five percent (25%) of all of such excess to Landlord, prior to deductions for any transaction costs incurred by Tenant, including marketing expenses, tenant improvement allowances, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent. If said consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(e) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in Default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Leaseinstruments, and any in such proposed transfereeform, assignee or sublessee shall agree as the Secured Creditor may reasonably request to attorn give effect to Landlord or its successors and assigns should this Lease be terminated for any reasonthe Secured Creditor's rights hereunder; provided, however, that any further assignment or subletting of or under this Lease by the Secured Creditor following a default by Tenant under any security agreement in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(f) Any consent to such Transfer favor of the Secured Creditor shall be effected on Landlord’s forms;
(g) There shall exist no uncured Default or Imminent Default hereunder subject to the terms of, and require, the prior written consent of which Tenant has been given notice by LandlordLandlord under this Article 56.
(hc) Such proposed transferee, assignee or sublessee’s use of the Premises shall not require any change Anything to the Permitted Use;
(i) Landlord contrary in this Article notwithstanding, Landlord's consent shall not be bound required to an assignment by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(j) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(k) A list of Hazardous Materials (as defined in Section 39.7 below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 39.2.
25.5. Any Transfer that is not in compliance with the provisions of this Section 25 shall be void.
25.6. The consent by Landlord to a Transfer shall not relieve Tenant or proposed transferee, assignee or sublessee from obtaining Landlord’s consent to any further Subject Transfer, nor shall it release Tenant or any proposed transferee, assignee or sublessee of Tenant from full and primary liability under this Lease.
25.7. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
25.8. [Intentionally omitted]
25.9. If sublease by Tenant sublets of the whole of the Premises to the purchaser in connection with the sale of Tenant's business either by way of a sale of assets or any potion thereofstock or in connection with a merger, Tenant hereby immediately and irrevocably assigns to Landlordconsolidation or corporate reorganization, as security for Tenant’s obligations under this Lease, all rent from but in any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default by Tenantevent, Tenant shall have remain liable under the right terms of this lease.
(d) Notwithstanding anything contained in this Article 56(d) to collect such rentthe contrary, Tenant shall provide Landlord with notice of any assignment or subletting.
(e) Except as may be effected hereunder, at no time during the term of this lease shall there be more than two sublessees occupying the premises or parts thereof, in addition to the Tenant or the operator of any cafeteria, day care center of health facility located in the Building and the Premises.
Appears in 1 contract
