ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayed. Section 14.2 If Tenant's interest in this Lease shall be assigned in violation of the provisions of this Article 14, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 14, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such (a) any subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment). (a) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14. (b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's interest Other than as expressly set forth in this Lease, Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns, expressly covenants that it shall not (i) assign, mortgage or encumber this Agreement or Tenant’s interest in whole or in part; or (c) sublet, or permit the subletting of, the Demised Premises or any part thereof. Tenant shall not advertise , nor (ii) underlet or authorize a broker suffer or permit the Demised Premises or any part thereof to advertise for a subtenant or assigneebe used by others, without in each instance, obtaining the prior written consent of Landlord in each instance. However, Landlord, which ’s consent shall not be unreasonably withheld or delayed.
Section 14.2 If Tenant's interest in this Lease shall be assigned in violation of required and the provisions of this Article 14Sections (e), such assignment shall be invalid (f) and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation (g) of this Article 14, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use 11 shall not relieve Tenant from its obligation apply to obtain the express prior consent of Landlord an assignment or sublease to any further assignment, subletting, occupancy or use. Any person to an entity which this Lease is assigned with Landlord's consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
(a) any subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes of this Article 14, (i) the transfer of owns a majority of the issued and outstanding capital stock shares and/or other ownership interests of any corporate tenantTenant, or of a corporate subtenant, or (b) the transfer of a majority of which is owned by Tenant, (c) is owned by the total interest in any partnership tenant same persons or subtenant, entities who own Tenant or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed (d) an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of Lease to any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation entity into or with which Tenant is merged or consolidated or with a Person to which an entity that purchases substantially all of Tenant's ’s assets are transferred or ownership interest so long as after such transaction referred to in this subparagraph (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Leased), and provided further, that the assignee has a Tenant’s net worth at least equal to or in excess is not less than the greater of the (x) Tenant’s net worth of Tenant as of the date of this Lease and as of the date or (y) Tenant’s net worth immediately prior to such merger transaction. The consent by Landlord to an assignment or underletting shall not in any wise be construed to relieve Tenant from any of its obligations hereunder or from obtaining the express consent in writing of Landlord to any further assignment or underletting.
(b) Any transfer, whichever is greaterby operation of law or otherwise, of fifty percent (50%) or, or more of the issued and outstanding shares of capital stock of Tenant (or if Tenant is a partnershippartnership or other entity fifty percent (50%) or more of the partnership interests or other ownership interests of Tenant), with in a successor partnershipsingle transaction or a related series of transactions, nor shall he deemed an assignment of this Lease within the meaning of this Article 11, except for a transferor related series of transfers by reason of bequest, devise or by operation of the laws of intestacy on or as a result of the death of a shareholder or transfers of stock through any nationally recognized stock exchange.
(c) No assignment or transfer shall be effective unless and until the assignee shall execute, acknowledge and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, whereby the assignee shall (i) assume the obligations and performance of this Lease and agree to be bound by all of the covenants, agreements, terms, provisions and conditions hereof on the part of Tenant to be performed or observed on and after the effective date of any such assignment and (ii) agree that the provisions of clause (a)this Article shall, (c) and notwithstanding such assignment or transfer, be binding upon it in the future.
(d) If this Lease be assigned, or if the Premises or any part thereof be underlet or occupied by anyone other than Tenant, landlord may, after default by Tenant, collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of Section 14.1 apply to transactions with an entity that controls this covenant, or is controlled the acceptance of the assignee, under-tenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained.
(i) If Tenant desires Landlord’s consent to an assignment of this Lease or is under common control to the subletting of all or any part of the Premises for any part of the term of this Lease with Tenantrespect thereto. Tenant shall notify Landlord before any of the name of the proposed assignee/sublessee, such transaction is consummatedinformation as to the proposed assignee/sublessee’s business financial responsibility and standing as Landlord may reasonably require, and of the material business terms and conditions of the proposed assignment/subletting. Such notice shall be deemed an offer to vacate and surrender, as of the Special Surrender Date (as hereinafter defined), either (1) if Tenant proposes to sublet only a part of the Premises for the balance of the term of this Lease, the space to be demised by the proposed sublease together with such other space, if any, as may be reasonably required for public corridors, toilets and core facilities serving the space so proposed to be sublet (said space(s) being herein collectively called a “Partial Space”) or (2) if Tenant proposes to assign this Lease or to sublet the entire Premises, the entire Premises. The term “Special Surrender Date” shall mean a date to be specified in such notice from Tenant; provided, however, that said date shall not be earlier than forty-live (45) days after the giving of such notice and not later than the effective date of the assignment or the date for the commencement of the term of the proposed subletting Landlord may accept such offer by a notice given to Tenant within thirty (30) days after the receipt of such notice from Tenant.
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Samples: Lease Agreement (Borderfree, Inc.)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 15.1 Except as otherwise provided in this Article 1415, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of LandlordLandlord to the form of such advertisement, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
Section 14.2 15.2 If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 1415, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 1415, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person Person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument in commercially reasonable form confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 1415, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interests in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or subtenantparent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "“affiliates" ” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "“over-the-counter market" ” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactionstransactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant tenant, subtenant or subtenant parent so that the shareholders or members of such tenant tenant, subtenant or subtenant parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such tenant or subtenantentity, shall be deemed an assignments assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, 15 and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 1415.
(bB) The provisions of clauses (a), (c) and (d) of Section 14.1 15.1 and Section 15.4 shall not apply to transactions with (and Landlord’s consent shall not be required for) (i) a corporation into change in ownership of Tenant as a result of a merger, consolidation or with which Tenant is merged reorganization or consolidated or with a Person to which the sale of substantially all of Tenant's ’s assets are transferred (provided such merger merger, consolidation, reorganization or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of ninety-five (95%) percent of the net worth of Tenant as of the date of this Lease; (ii) the sale, exchange, issuance or other transfer of Tenant’s stock on a national stock exchange; or (iii) the assignment of this Lease and as or sublease of all or any portion of the date immediately prior to such merger Premises to, or transferthe use of the Premises by, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or which controls, is controlled by Tenant or is under the common control with of Tenant. Tenant shall notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory requirements applicable to Tenant, in which event Tenant shall notify Landlord promptly after Tenant is permitted to do so.
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 14.1. Except as otherwise provided in this Article 14XIV, Tenant shall not without Landlord’s prior written consent, which consent may be withheld or conditioned in Landlord's reasonable discretion, (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise or authorize a broker to advertise the availability of space for a potential subtenant or assigneeassignee without, without in each instance, obtaining the prior written consent of Landlord, which shall not consent may be unreasonably withheld or delayedconditioned in Landlord's reasonable discretion in each instance.
Section 14.2 14.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 14XIV, such assignment shall be invalid invalid, void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Base Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 14XIV, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Base Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior written consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its underlying obligations under this Lease or the obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed and agreed to perform all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes of this Article 14XIV, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignmentassignment except if such agreement is made pursuant to any transaction allowed under Section 14.2(b) below, (ivii) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14XIV, and (viii) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (dc) of Section 14.1 shall not apply to transactions with a corporation corporation, limited liability company or other entity into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's ’s assets or capital stock are transferred or sold (provided such merger or transfer of assets or stock is for a good and reasonable business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and or as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership), nor shall the provisions of clause (a), (c) and (dc) of Section 14.1 apply to transactions with an entity that directly or indirectly controls or is directly or indirectly controlled by Tenant or is under common direct or indirect control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
(c) The term “control” as used in this Lease (i) in the case of a corporation shall mean ownership of more than fifty percent (50%) of the outstanding voting capital stock of that corporation, (ii) in the case of a general partnership, shall mean more than fifty percent (50%) of the general partnership interest of the partnership, (iii) in the case of a limited partnership, shall mean more than fifty percent (50%) of the general and limited partnership interests of such limited partnership; (iv) in the case of a limited liability company, shall mean more than fifty percent (50%) of the membership interests of such limited liability company, and (v) in the case of a limited liability partnership, shall mean more than fifty percent (50%) of the partnership interest of such limited liability partnership.
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 15.1. Except as otherwise provided in this Article 1415, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 15.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 1415, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 1415, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 1415, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any general or limited liability company, partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interest in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "“affiliates" ” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "“over-the-counter market" ” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders or members of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interest of such tenant or subtenant, shall be deemed an assignments assignment of this Lease, except that the issuance or increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, as part of a public offering or “stock-split” of such capital stock of such tenant or subtenant shall not be deemed to be an assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 1415, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease; and (vi) the change or conversion of Tenant to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of a limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 1415.
(bB) The provisions of clauses (a), (c) and (d) of Section 14.1 15.1 and Section 15.4(B)(3)(iii) shall not apply to transactions with a corporation or a limited liability company into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's ’s assets are transferred (provided such merger merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause clauses (a), (c) and (d) of Section 14.1 15.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
Samples: Lease Agreement (Ampex Corp /De/)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 15.1. Except as otherwise provided in this Article 1415, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of LandlordLandlord to such advertisement, which shall not be unreasonably withheld or delayed, provided that Tenant shall have the right to retain a broker to list for a subtenant or assignee. In no event may Tenant publicize any financial information (including, without limitation, rental amounts) or otherwise advertise any such information or amount.
Section 14.2 15.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 1415, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 1415, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 1415, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interests in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or subtenantparent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "“affiliates" ” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "“over-the-counter market" ” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactionstransactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership control of such tenant tenant, subtenant or subtenant parent so that the shareholders or members of such tenant tenant, subtenant or subtenant parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of control such tenant or subtenantentity, shall be deemed an assignments assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 1415, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease, and (vi) the change or conversion of Tenant from an entity in which the partners or members have personal liability to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 1415.
(bB) The provisions of clauses (a), (c) and (d) of Section 14.1 15.1, Section 15.3(A), Section 15.4(B), Section 15.5 and Section 15.6 shall not apply to transactions with (and Landlord’s consent shall not be required for)
(i) a corporation into change in ownership or with which control of Tenant is merged as a result of a merger, consolidation or consolidated reorganization, or with a Person to which the sale of all or substantially all of Tenant's ’s assets are transferred (provided that such merger merger, consolidation, reorganization or transfer of assets is for a good valid business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee upon such change in ownership or control Tenant has a net worth in an amount at least equal to or in excess of twenty-five (25) times the net worth then annual Fixed Rent under this Lease); (ii) the sale, exchange, issuance or other transfer of Tenant as of Tenant’s stock on a national stock exchange; or (iii) the date assignment of this Lease and as or sublease of all or any portion of the date immediately prior to Premises to, or the use of the Premises by, an entity which controls, is controlled by or is under the common control of Tenant (such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause transactions described in clauses (a), (ci) and (diii) of Section 14.1 apply being collectively referred to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenantas “Permitted Transfers”, and such parties “Permitted Transferees”). Tenant shall notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory requirements applicable to Tenant, in which event Tenant shall notify Landlord promptly after Tenant is permitted to do so.
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 If Tenant's interest in this Lease shall be assigned in violation of the provisions of this Article 14, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 14, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of suchby
(a) any subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 (A) Except as otherwise provided expressly permitted herein, Tenant, without ------------- the prior consent of Landlord in this Article 14each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) , mortgage or encumber Tenant's its interest in this Lease, in whole or in part; or , (cb) sublet, or permit the subletting of, the Premises or any part thereof. Tenant , or (c) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise, by any Person other than Tenant.
(B) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not advertise constitute property of Tenant or authorize a broker of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting Landlord's property under the preceding sentence not paid or delivered to advertise Landlord shall be held in trust for a subtenant the benefit of Landlord and shall be promptly paid to or assignee, without in each instance, obtaining the prior written consent of turned over to Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 (A) If Tenant's interest in this Lease shall be is assigned in ------------- violation of the provisions of this Article 1412, such assignment shall be invalid void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other than Tenant, whether or not in violation of this Article 1412, Landlord, after default by Tenant under this Lease, including, without limitation, a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the other items of Rental reserved in this Lease. No such assignment, subletting, occupancy, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. .
(B) Tenant shall reimburse Landlord on demand for any costs that may be reasonably incurred by Landlord in connection with any proposed assignment of Tenant's interest in this Lease or any proposed subletting of the Premises or any part thereof, including, without limitation, any reasonable processing fee, reasonable attorneys' fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed.
(D) Any person Person to which this Lease is assigned with Landlord's consent pursuant to the provisions of the Bankruptcy Code shall be deemed without more further act or deed to have assumed all of the obligations arising under this Lease from on and after the date of such
(a) such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant's liability hereunder shall continue notwithstanding any subsequent modification or amendment hereof, hereof or (b) Landlord's forbearance in enforcing against Tenant the release of any obligation or subsequent tenant hereunder from any liability, without notice to Tenant, to each all of which Tenant hereby consents in advance.
(A) If Tenant assumes this Lease and proposes to assign ------------- the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Lease on terms --------- acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. If Such notice shall set forth (a) the name and address of such Person, (b) all of the terms and conditions of such offer, and (c) adequate assurance of future performance by such Person under the Lease as set forth in Paragraph (B) below, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any time prior to the effective date of such amendment operates proposed assignment, to increase accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any --------- brokerage commissions which would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in this Lease shall mean that any proposed assignee shall, among other things, (a) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of Tenant this Lease, which sum shall be held by Landlord in accordance with the provisions of Article 31 hereof, (b) furnish Landlord with financial statements of such assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such three (3) years, (c) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee's future performance under this Lease, the liability under this Section 14.2 and (d) provide such other information or take such action as Landlord, in its reasonable judgment shall determine is necessary to provide adequate assurance of the assigning performance by such assignee of its obligations under the Lease.
Section 12.4. (A) As long as XXXX.xxx, Inc. is Tenant, Tenant shall continue have ------------- the privilege, subject to be no greater than if such amendment had not been made the terms and conditions hereinafter set forth, without the consent of Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (unless such party shall have expressly consented 1), (4) and (5) of Section 12.8(A) hereof, and without Landlord having the right granted in writing Section 12.8(B) hereof to such amendment).
(a) For purposes of recapture, to assign its interest in this Article 14, Lease (i) the transfer of to any corporation which is a majority of the issued and outstanding capital stock of any corporate tenant, successor to Tenant either by merger or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchangeconsolidation, (ii) any increase in the amount to a purchaser of issued and/or outstanding capital stock of any corporate tenant, all or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger purchaser shall have also assumed substantially all of Tenant's liabilities) or transfer (iii) to a Person which shall (1) Control, (2) be under the Control of, or (3) be under common Control with Tenant (any such Person referred to in this clause (iii) being a "Related Entity"). As -------------- long as XXXX.xxx, Inc. is Tenant, Tenant also shall have the privilege, subject to the terms and conditions hereinafter set forth, without the consent of assets Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the right granted in Section 12.6(B) hereof to recapture, to sublease all or any portion of the Premises to a Related Entity. Any assignment or subletting described above may only be made upon the condition that (a) any such assignee or subtenant shall continue to use the Premises for general, administrative and executive offices, (b) the principal purpose of such assignment or sublease is not the acquisition of Tenant's interest in this Lease or to circumvent the provisions of Section 12.1 of this Article (except if such assignment or sublease is made to a Related Entity and is made for a good valid intracorporate business purpose and is not principally for made to circumvent the purpose provisions of transferring the leasehold estate created by Section 12.1 of this LeaseArticle), and provided further(c) in the case of an assignment, that the any such assignee has shall have a net worth at least and annual income and cash flow, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment, equal to or in excess the greater of the Tenant's net worth of Tenant and annual income and cash flow, as of so determined, on (i) the date immediately preceding the date of such assignment, and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days after execution thereof, deliver to Landlord either (x) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Landlord, duly executed by Tenant, together with an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and as of the date immediately prior performed, or (y) a duplicate original sublease in form and substance reasonably satisfactory to such merger or transferLandlord, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled duly executed by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummatedand the subtenant.
Appears in 1 contract
Samples: Lease Agreement (Xoom Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 (A) Except as otherwise provided expressly permitted herein, Tenant, without the prior consent of Landlord in this Article 14each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) , mortgage or encumber Tenant's its interest in this Lease, in whole or in part; or , (cb) sublet, or permit the subletting of, the Premises or any part thereof. Tenant , or (c) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise, by any Person other than Tenant.
(B) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not advertise constitute property of Tenant or authorize a broker of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting Landlord's property under the preceding sentence not paid or delivered to advertise Landlord shall be held in trust for a subtenant the benefit of Landlord and shall be promptly paid to or assignee, without in each instance, obtaining the prior written consent of turned over to Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 (A) If Tenant's interest in this Lease shall be is assigned in violation of the provisions of this Article 1412, such assignment shall be invalid void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other than Tenant, whether or not in violation of this Article 1412, Landlord, after default by Tenant under this Lease, including, without limitation, a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the other items of Rental reserved in this Lease. No such assignment, subletting, occupancy, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. .
(B) Tenant shall reimburse Landlord within fifteen (15) Business Days after demand thereof for any actual out-of-pocket costs that may be incurred by Landlord in connection with any proposed assignment of Tenant's interest in this Lease or any proposed subletting of the Premises or any part thereof, including, without limitation, any reasonable processing fee, reasonable attorneys' fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed.
(D) Any person Person to which this Lease is assigned with Landlord's consent pursuant to the provisions of the Bankruptcy Code shall be deemed without more further act or deed to have assumed all of the obligations arising under this Lease from on and after the date of such
such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant's liability hereunder shall continue to the extent of the obligations contained in this Lease (a) as the same may have been amended or modified prior to any such assignment), notwithstanding any subsequent modification or amendment hereof, hereof or (b) Landlord's forbearance in enforcing against Tenant the release of any obligation or subsequent tenant hereunder from any liability, without notice to Tenant, to each of which release Tenant hereby consents in advance.
(A) If Tenant assumes this Lease and proposes to assign the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Lease on terms acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. If Such notice shall set forth (a) the name and address of such Person, (b) all of the terms and conditions of such offer, and (c) adequate assurance of future performance by such Person under the Lease as set forth in Paragraph (B) below, including, without limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any time prior to the effective date of such amendment operates proposed assignment, to increase accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions which would otherwise be payable by Tenant out of the consideration to be paid by such Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in this Lease shall mean that any proposed assignee shall, among other things, (a) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of Tenant this Lease, which sum shall be held by Landlord in accordance with the provisions of Article 31 hereof, (b) furnish Landlord with financial statements of such assignee for the prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of at least six (6) times the then Fixed Rent for each of such three (3) years, (c) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee's future performance under this Lease, the liability under this Section 14.2 and (d) provide such other information or take such action as Landlord, in its reasonable judgment shall determine is necessary to provide adequate assurance of the assigning performance by such assignee of its obligations under the Lease.
Section 12.4. (A) As long as Focal Communications Corp. is Tenant, Tenant shall continue have the privilege, subject to be no greater than if such amendment had not been made the terms and conditions hereinafter set forth, without the consent of Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (unless such party shall have expressly consented 1), (4) and (5) of Section 12.8(A) hereof, and without Landlord having the right granted in writing Section 12.8(B) hereof to such amendment).
(a) For purposes of recapture, to assign its interest in this Article 14, Lease (i) the transfer of to any corporation which is a majority of the issued and outstanding capital stock of any corporate tenant, successor to Tenant either by merger or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchangeconsolidation, (ii) any increase in the amount to a purchaser of issued and/or outstanding capital stock of any corporate tenant, all or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger purchaser shall have also assumed substantially all of Tenant's liabilities) or transfer (iii) to a Person which shall (1) Control, (2) be under the Control of, or (3) be under common Control with Tenant (any such Person referred to in this clause (iii) being a "Related Entity"). As long as Focal Communications Corp. is Tenant, Tenant also shall have the privilege, subject to the terms and conditions hereinafter set forth, without the consent of assets Landlord but subject to Tenant's satisfaction of conditions set forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the right granted in Section 12.6(B) hereof to recapture, to sublease all or any portion of the Premises to a Related Entity. Any assignment or subletting described above may only be made upon the condition that (a) any such assignee or subtenant shall continue to use the Premises for the conduct of the same business as Tenant was conducting prior to such assignment or sublease, (b) the principal purpose of such assignment or sublease is not the acquisition of Tenant's interest in this Lease or to circumvent the provisions of Section 12.1 of this Article (except if such assignment or sublease is made to a Related Entity and is made for a good valid intracorporate business purpose and is not principally for made to circumvent the purpose provisions of transferring the leasehold estate created by Section 12.1 of this LeaseArticle), and provided further(c) in the case of an assignment other than to a Related Entity, that the any such assignee has shall have a net worth at least and annual income and cash flow, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment, equal to or in excess the greater of the Tenant's net worth of Tenant and annual income and cash flow, as of so determined, on (i) the date immediately preceding the date of such assignment, and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days after execution thereof, deliver to Landlord either (x) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Landlord, duly executed by Tenant, together with an instrument in form and substance reasonably satisfactory to Landlord, duly executed by the assignee, in which such assignee shall assume observance and performance of, and agree to be personally bound by, all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and as performed from and after the effective date of the date immediately prior assignment, or (y) a duplicate original sublease in form and substance reasonably satisfactory to such merger or transferLandlord, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled duly executed by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummatedand the subtenant.
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, 15.1 Tenant shall not not, whether voluntarily, involuntarily, or by operation of law or otherwise (a) assign or otherwise transfer this Lease (whether by operation other than to an Affiliate of lawTenant, transfers of interests in Tenant or otherwise); offer or advertise to do so, (b) mortgage or encumber Tenant's interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, sublet the Premises or any part thereof. Tenant shall not , or offer or advertise to do so, or authorize a broker allow the same to advertise for a subtenant be used, occupied or assigneeutilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or otherwise hypothecate this Lease or the Premises or any part thereof in any manner whatsoever, without in each instance, instance obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 15.2 If and so long as Tenant is a corporation or a partnership, the following shall be deemed to be an assignment of this Lease under Section 15.1 prohibited by said Section unless Tenant obtains the prior consent of Landlord: one or more sales or transfers of stock or Back to Contents partnership interests, voluntarily, involuntarily, by operation of law or otherwise, or the issuance of new stock or partnership interests, by which an aggregate of more than 50% of Tenant's interest ’s stock or partnership interests shall be vested in a party or parties who are not stockholders or partners as of the date hereof. This Section shall not apply to transactions with a corporation, limited liability company or partnership into or with which Tenant is merged or consolidated or to which substantially all of Tenant’s assets are transferred or to any corporation, limited liability company or partnership (an “Affiliate”) which controls Tenant or is controlled by Tenant or is under common control with Tenant if (a) the successor to Tenant has a tangible net worth computed in accordance with generally accepted accounting principles at least equal to the greater of (i) the tangible net worth of Tenant immediately prior to such merger, consolidation or transfer, or (ii) the tangible net worth on the date of this Lease of the original Tenant herein named, and (b) proof satisfactory to Landlord of such tangible net worth is delivered to Landlord at least 10 days prior to the effective date of any such transaction. The provisions of this Section 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, as amended) or is traded in the over-the-counter market with quotations reported by the National Association of Securities Dealers through its automated system for reporting quotations. The term “control” as used in this Lease (i) in the case of a corporation shall be assigned mean ownership of more than fifty (50%) percent of the outstanding voting common capital stock of that corporation, (ii) in the case of a general or limited liability partnership, shall mean more than fifty (50%) percent of the general partnership or membership interest of the partnership, (iii) in the case of a limited partnership, shall mean more than fifty (50%) percent of the general partnership interests of such limited partnership, and (iv) in the case of a limited liability company, shall mean more than fifty (50%) percent of the membership interests of such limited liability company.
Section 15.3 If this Lease is assigned, whether or not in violation of the provisions of this Article 14Lease, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental rent from the assignee as a fee for its use and occupancyassignee. If the Premises or any part thereof are sublet to, or used or occupied by, or used by, any person by anybody other than Tenant, whether or not in violation of this Article 14Lease, LandlordLandlord may, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancyTenant, and shall expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No Additional Rent herein reserved, but no such assignment, subletting, occupancy, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any termof the provisions of Section 15.1, covenant or condition of this Lease or the acceptance by Landlord of such the assignee, subtenantsubtenant or occupant as tenant, occupant or user as a release of Tenant hereunder, nor shall from the same, in any circumstances, relieve performance by Tenant of any of its Tenant’s obligations under this Lease. The consent by Landlord to any assignment, sublettingmortgaging, occupancy subletting or use or occupancy by others shall not in any way be considered to relieve Tenant from its obligation to obtain obtaining the express prior consent of Landlord to any other or further assignment, sublettingmortgaging, subletting or use or occupancy or useby others not expressly permitted by this Article. Any person to which References in this Lease is assigned to use or occupancy by others (that is, anyone other than Tenant) shall not be construed as limited to subtenants and those claiming under or through subtenants but as including also licensees and others claiming under or through Tenant, immediately or remotely.
Section 15.4 Any assignment or transfer, whether made with Landlord's ’s consent pursuant to Section 15.1 or without the requirement of Landlord’s consent pursuant to Section 15.2, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement in form and substance reasonably Back to Contents satisfactory to Landlord whereby the assignee shall assume the obligations of this Lease on the part of Tenant to be performed or observed and whereby the assignee shall agree that the provisions in Section 15.1 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers. Notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of the Fixed Rent or Additional Rent by Landlord from an assignee, transferee, or any other party, the original named Tenant shall remain fully liable for the payment of the Fixed Rent and Additional Rent and for the other obligations of this Lease on the part of Tenant to be performed or observed.
Section 15.5 The liability of Tenant and any immediate or remote successor in interest of Tenant and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord with the then Tenant extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.
Section 15.6 Neither the listing of any name other than that of Tenant, whether on the door of the Premises or on any directory, or otherwise, nor the acceptance by Landlord of any check not drawn by Tenant in payment of Fixed Rent or Additional Charges, shall operate to vest any right or interest in this Lease or in the Premises, nor shall it be deemed to be the consent of Landlord to any assignment or transfer of this Lease or to any sublease of the Premises or to the use or occupancy thereof by others.
Section 15.7 Except as specifically provided to the contrary in this Article 15, if Tenant shall at any time or times during the Term desire to assign this Lease or sublet all or any part of the Premises, Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (a) a conformed or photostatic copy of the proposed assignment or sublease, the effective or commencement date of which shall be at least 60 days after the giving of such notice, (b) a statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its proposed use of the Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed without more an offer from Tenant to have assumed all of the obligations arising under this Lease from and after the date of such
Landlord whereby Landlord (aor Landlord’s designee) any subsequent amendment hereofmay, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes of this Article 14at its option, (i) sublease such space from Tenant upon the transfer terms and conditions hereinafter set forth or (ii) terminate this Lease (if the proposed transaction is an assignment or a sublease of a majority all or substantially all of the issued Premises). Said options may be exercised by Landlord by notice to Tenant at any time within 60 days after such notice has been given by Tenant to Landlord; and outstanding capital stock of during such 60-day period Tenant shall not assign this Lease or sublet such space to any corporate tenant, person.
Section 15.8 If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or of a corporate subtenant, sublet all or the transfer of a majority substantially all of the total interest in any partnership tenant Premises, then this Lease shall end and expire on the date that such assignment or subtenant, sublet was to be effective or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such subleasecommence, as the case may be, except that and the transfer of the outstanding capital stock of any corporate tenant, or subtenant, Fixed Rent and Additional Rent shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior paid and apportioned to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14date.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
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ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 12.1 Except as otherwise provided expressly permitted herein, Tenant, without the prior consent of Landlord in this Article 14each instance, Tenant shall not (a) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) , mortgage or encumber Tenant's its interest in this Lease, in whole or in part; or , (cb) sublet, or permit the subletting of, the Premises or any part thereof, or (c) permit the Premises or Licensed Area(s) or any part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant. As part of, and directly related to, the conduct of Tenant's business Tenant shall not advertise or authorize a broker to advertise for a subtenant or assigneemay, without in each instance, obtaining the prior written consent of LandlordLandlord and specifically exempt from the terms of Section 12.2 and Section 12.5 hereof, which place telecommunications equipment of its customers in the Premises for the exclusive use by Tenant for the exclusive transmission to and for the exclusive benefit of such customers, of telecommunications services; provided, however, that such customers shall not be unreasonably withheld granted access to operate such equipment, or delayedthe right to occupy, the Premises in connection therewith. At the request of Landlord made from time to time, Tenant shall promptly furnish Landlord with a list of such customers and identify the equipment of such customers located in the Premises.
Section 14.2 12.2 If Tenant's interest in this Lease shall be is assigned in violation of the provisions of this Article 1412, such assignment shall be invalid void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than
Section 12.3 As long as Net2000 Communications Real Estate, Inc. or a Related Entity is Tenant hereunder, Tenant shall have the privilege subject to the terms and conditions hereinafter set forth, without the consent of Landlord, to assign its interest in this Lease (i) to any corporation which is a successor to Net2000 Communications Real Estate, Inc. either by merger or consolidation, (ii) to a purchaser of all or substantially all of Net2000 Communications Real Estate, Inc.'s assets (provided such purchaser shall have also assumed substantially all of Tenant's liabilities), or (iii) to a corporation or other entity which shall (1) control, (2) be under the control of, or (3) be under common control with, Net2000 Communications Real Estate, Inc. (the term "control" as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation, or other majority equity and control interest if Tenant is not a corporation) (any such entity being a "Related Entity"). Tenant may also sublease all or any portion of the Premises to a Related Entity without the consent of Landlord. Any assignment or subletting described above may only be made upon the condition that (a) Tenant
(A) Notwithstanding the provisions of Section 12.1 hereof, whether or if Landlord shall not in violation exercise its rights pursuant to paragraph (B) of this Article 14Section 12.4, LandlordLandlord shall not unreasonably withhold its consent to any subletting of the Premises (if Tenant proposes to sublet a portion of the Premises then, after default by Tenant under unless the context otherwise requires, references in this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected Section 12.4 to the Fixed Rent and Premises shall be deemed to refer to the items portion of Rental reserved in this Lease. No such assignmentthe Premises proposed to be sublet by Tenant), subletting, occupancy, or use, whether with or provided that:
(1) the Premises shall not without Landlord's prior consent, nor any have been publicly advertised for subletting at a rental rate less than the prevailing rental rate set by Landlord for comparable space in the Building (the "Prevailing Rate");
(2) no Event of Default shall then exist;
(3) the proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Premises in a manner in keeping with the standards in such collection respects of the other tenancies in the Building,
(4) if Landlord has or application within six (6) months thereafter reasonably expects to have suitable space available in the Building comparable to the space Tenant proposes to sublet, the proposed subtenant shall not be a person or entity with whom Landlord is then negotiating or has received or given an offer to comparable lease space in the Building;
(5) the character of Rental the business to be conducted or fee the proposed use of the Premises by the proposed subtenant shall not (a) be likely to materially increase Landlord's operating expenses beyond that which would be incurred for use by Tenant or for use in accordance with the standards of use of other tenancies in the Building; (b) materially increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; (c) require any alterations to be performed in or made to any portion of the Building or the Real Property other than the Premises; or (d) violate any provision or restrictions herein relating to the use or occupancy of the Premises;
(6) the subletting shall be expressly subject to all of the terms, covenants, conditions and occupancyobligations on Tenant's part to be observed and performed 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 subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be used or occupied by others, without the prior written consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before the Expiration Date and shall not be for a term of less than two (2) years unless it commences less than two (2) years before the Expiration Date;
(8) no subletting shall be for less than 2,200 contiguous rentable square feet and at no time shall there be more than three (3) occupants, including Tenant, in the Premises; and
(9) such sublease shall expressly provide that in the event of termination, re-entry or dispossess of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not (i) be liable for any previous act or omission of Tenant under such sublease, (ii) be subject to any offset, not expressly provided in such sublease, which therefore accrued to such subtenant against Tenant, (iii) be bound by any previous modification of such sublease or by any previous prepayment of more than one month's rent unless previously approved by Landlord, (iv) be bound by any covenant to undertake or complete any construction of the Premises or any portion thereof demised by such sublease and (v) be bound by any obligation to make any payment to or on behalf of the subtenant, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such termination, re-entry or dispossess by Landlord under this Lease and which Landlord is required to perform hereunder with respect to the subleased space at Landlord's expense, it being expressly understood, however, that Landlord shall not be bound by any
(B) At least ten (10) Business Days prior to any proposed subletting Tenant shall submit a statement to Landlord (a "Sublease Statement") containing the following information: (a) the name and address of the proposed subtenant, (b) a description of the portion of the Premises to be sublet, (c) the terms and conditions of the proposed subletting including the rent payable, (d) the nature and character of the business of the proposed subtenant and (e) any other information that Landlord may reasonably request. Landlord shall have the right, exercisable within fifteen (15) days after Landlord's receipt of the Sublease Statement, to terminate this Lease with respect to the portion of the Premises to be sublet (the "Offered Space"). If Landlord exercises its option to terminate this Lease with respect to the Offered Space, then the Fixed Rent, Tenant's Share and Space Factor shall be reduced in the proportion to which the rentable square footage of the Offered Space bears to the total rentable area of the Premises immediately prior to Landlord's termination of this Lease with respect to the Offered Space.
(1) The failure by Landlord to exercise its option under Section 12.4(B) with respect to any subletting shall not be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord option with respect to any assignment, subletting, occupancy extension of such subletting or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's consent shall be deemed without more to have assumed all subsequent subletting of the obligations arising under this Lease from and after the date of such
(a) any subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment)Premises affected thereby.
(aA) In connection with any subletting of all or any portion of the Premises, Landlord shall be entitled to and Tenant shall pay to Landlord a sum equal to fifty percent (50%) of any Sublease Profit derived therefrom. All sums payable hereunder by Tenant shall be calculated on an annualized basis, but shall be paid to Landlord, as additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.:
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, Tenant shall not (a) assign this Lease (whether by operation of lawTenant expressly covenants that it shall not assign, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's interest in this Lease, in whole or in part; or (c) subletunderlet, or suffer or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise thereof to be used or authorize a broker to advertise for a subtenant or assigneeoccupied by others, without (i) following the procedure set forth in each instancesubparagraph (b), and (ii) obtaining the prior written consent of Landlord and Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 's mortgagee in each instance. If Tenant's interest in this Lease shall be assigned in violation of the provisions of this Article 14pursuant to subparagraph (e) (ii) hereof or otherwise, such assignment shall be invalid and of no force and effect against other than with Landlord; provided's written consent, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If or if the Premises or any part thereof are sublet to, be underlet or occupied by, or used by, any person by anybody other than Tenant, whether or not in violation of this Article 14, LandlordLandlord may, after default by Tenant under this LeaseTenant, beyond the giving of such notice and grace period as may be provided herein, collect any item of Rental rent from the assignee, undertenant or other sums paid by the subtenant, user or occupant as a fee for its use and occupancyoccupant, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such rent herein reserved, but no assignment, sublettingunderletting, occupancy, occupancy or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the provisions hereof the acceptance by Landlord of such the assignee, subtenantundertenant or occupant as Tenant, occupant or user as a release of Tenant hereunder, nor shall from the same, in any circumstances, relieve further performance by Tenant of any the covenants on the part of its obligations under this LeaseTenant herein contained. The consent by Landlord to any assignment, subletting, occupancy an assignment or use underletting shall not in any wise be construed to relieve Tenant from its obligation to obtain obtaining the express prior consent in writing of Landlord to any further assignment, subletting, occupancy assignment or useunderletting. Any person to which this Lease is assigned with Landlord's consent In no event shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
(a) any subsequent amendment hereof, or (b) Landlord's forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of permitted assignee assign this Lease, or any permitted sublessee assign or encumber its sublease, or futher sublet all or any portion of such subleaseits sublet space, or otherwise suffer or permit the Premises or the sublet space, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenantpart thereof to be used or occupied by others, without Landlord's prior written consent in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a each instance. A modification, amendment or extension of a sublease shall be deemed a new sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions If Tenant desires to assign this Lease or to sublet the Premises (Tenant may not sublet to more than two subtenants on any one floor, and may not sublet less than five thousand square feet of clauses (aspace to any one subtenant), it shall submit in writing to Landlord (i) the name and address of the proposed assignee or sublessee, (ii) a summary of the principal terms of the proposed agreement of assignment or sublease, which shall include the rent, additional rents and all other monies to be paid Tenant thereunder, (iii) reasonably satisfactory information as to the nature and character of the business of the proposed assignee or sublessee, and (iv) financial statements and banking or other credit information relating to the proposed assignee or sublessee reasonably sufficient to enable Landlord to determine the financial responsibility and character of the proposed, assignee or sublessee.
(c) Landlord agrees not to unreasonably withhold or delay its consent to Tenant's request for consent to such specific assignment or subletting. Any such consent of Landlord shall be subject to the terms of this article and conditioned upon: (i) there being no default by Tenant under any of the terms, covenants and conditions of this Lease at the time that Landlord's consent to any such subletting or assignment is requested, and on the date of the commencement of the term of any such proposed sublease, or the effective date of any such proposed assignment, beyond the giving of such notice and grace period as may be provided herein, and (ii) Tenant's execution and delivery to Landlord of the following representations: (A) that Tenant is the owner of this Lease, that it has not done or suffered anything whereby this Lease has been encumbered in any way, (B) that no default, or event that with the passing of time or the giving of notice or both would constitute a default on the part of the Landlord exists under this Lease, (C) that Landlord has performed all of the terms, covenants and conditions of this Lease required to be performed by Landlord (to the extent true, and if not, setting forth the manner in which Landlord has not so performed), and (D) that Tenant has no charges, liens or offsets against the enforcement of this Lease, or the rents, additional rents or other charges due or to become due hereunder (to the extent true, and if not, setting forth the nature and amounts of such charges, liens or offsets against the enforcement of this Lease, or the rents, additional rents or other charges due or to become due hereunder).
(d) Upon receiving Landlord's written consent, Tenant shall deliver two (2) duly executed duplicate original copies of Section 14.1 the sublease or assignment to Landlord, and if the obligations of the assignee or sublessee shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially have been guaranteed, two (2) duly executed duplicate original copies of the guaranty. Any such sublease shall provide that all of the terms and provisions thereof are subject to the terms and conditions of this Lease. The sublessee shall also assume, in a separate agreement, the terms, covenants, conditions and restrictions contained in Article 5 hereof with respect to the use of the Premises, and shall further agree with respect to any assignment of the sublease, or any further subletting of the sublet premises, to be bound by the terms, covenants, conditions and restrictions contained in section (a) of this Article 14 with respect to an assignment of this Lease. Any such assignment shall contain an assumption by the assignee of all of the terms, covenants and conditions of this Lease to be performed by Tenant's assets are transferred (provided . Notwithstanding any such merger assignment or transfer of assets is for a good business purpose subletting, Tenant named herein shall remain, and not principally continue to be, liable for the purpose performance of transferring the leasehold estate created by terms and conditions in this Lease, including but not limited to payment of the annual rent, additional rents and provided furtherall other charges payable hereunder.
(e) Anything herein contained to the contrary notwithstanding:
(i) Tenant shall not advertise all or any part of the Premises for subletting, or this Lease for assignment, at a rental rate lower than the annual rental rate then payable by Tenant to Landlord under this Lease; (ii) no assignment or subletting shall be made: (A) to the United States, State of New York or City of New York, or any agency or department thereof or any entity funded by any of the foregoing; to any foreign government or agency or department thereof or any entity funded by any of the foregoing; to any school; to any person or entity whose work force at the Premises would be substantially greater than that of the assignee has a net worth at least equal Tenant named herein; or to or in excess from any person or entity which shall at the time be a tenant, subtenant or other occupant, or a subsidiary, parent or affiliate of any tenant, subtenant or other occupant of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger Building or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.Landlord's building at 233 Park Avenue
Appears in 1 contract
Samples: Lease Agreement (STV Group Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 (a) Except as otherwise provided expressly permitted herein, without the prior consent of Landlord in this Article 14each instance, Tenant shall not (ai) assign its rights or delegate its duties under this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) , mortgage or encumber Tenant's its interest in this Lease, in whole or in part; or , (cii) sublet, or permit the subletting of, the Premises or any part thereof. Tenant , or (iii) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise, by any Person other than Tenant.
(b) If this Lease is assigned to any Person pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not advertise constitute property of Tenant or authorize a broker of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting Landlord’s property under the preceding sentence not paid or delivered to advertise Landlord shall be held in trust for a subtenant the benefit of Landlord and shall be promptly paid to or assignee, without in each instance, obtaining the prior written consent of turned over to Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 (a) If Tenant's ’s interest in this Lease shall be is assigned in violation of the provisions of this Article 1412, such assignment shall be invalid void and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and other items of Rental reserved in this Lease. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person Person other than Tenant, whether or not in violation of this Article 1412, Landlord, after default by Tenant under this Lease, including a subletting or occupancy in violation of this Article 12, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the other items of Rental reserved in this Lease. No such assignment, subletting, occupancy, occupancy or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. .
(b) Tenant shall reimburse Landlord on demand for any reasonable out-of-pocket third party costs that may be incurred by Landlord in connection with any proposed assignment of Tenant’s interest in this Lease or any proposed subletting of the Premises or any part thereof, including any reasonable processing fee, reasonable attorneys’ fees and disbursements and the reasonable costs of making investigations as to the acceptability of the proposed subtenant or the proposed assignee.
(c) Neither any assignment of Tenant’s interest in this Lease nor any subletting, occupancy or use of the Premises or any part thereof by any Person other than Tenant, nor any collection of Rental by Landlord from any Person other than Tenant as provided in this Section 12.2, nor any application of any such Rental as provided in this Section 12.2 shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant’s part to be observed and performed.
(d) Any person Person to which this Lease is assigned with Landlord's consent pursuant to the provisions of the Bankruptcy Code shall be deemed without more further act or deed to have assumed all of the obligations arising under this Lease from on and after the date of such
(a) such assignment. Any such assignee shall execute and deliver to Landlord upon demand an instrument confirming such assumption. No assignment of this Lease shall relieve Tenant of its obligations hereunder and, subsequent to any assignment, Tenant’s liability hereunder shall continue notwithstanding any subsequent modification or amendment hereof, hereof or (b) Landlord's forbearance in enforcing against Tenant the release of any obligation or subsequent tenant hereunder from any liability, without notice to Tenant, to each all of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(a) For purposes If Tenant assumes this Lease and proposes to assign the same pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Article 14Lease on terms acceptable to Tenant, then notice of such proposed assignment shall be given to Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but in any event no later than ten (10) days prior to the date that Tenant shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption. Such notice shall set forth (i) the transfer name and address of a majority such Person, (ii) all of the issued terms and outstanding capital stock conditions of any corporate tenantsuch offer, or and (iii) adequate assurance of a corporate subtenantfuture performance by such Person under the Lease as set forth in Section 12.3(b), or including the transfer of a majority assurance referred to in Section 365(b)(3) of the total interest in Bankruptcy Code or Requirements of similar purpose or import. Landlord shall have the prior right and option, to be exercised by notice to Tenant given at any partnership tenant or subtenanttime prior to the effective date of such proposed assignment, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed to accept an assignment of this LeaseLease upon the same terms and conditions and for the same consideration, or of such subleaseif any, as the case may bebona fide offer made by such Person, except less any brokerage commissions that the transfer would otherwise be payable by Tenant out of the outstanding capital stock of any corporate tenant, or subtenant, shall consideration to be deemed not to include paid by such Person in connection with the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The term “adequate assurance of future performance” as used in this Lease shall mean that any proposed assignee shall, among other things, (i) deposit with Landlord on the assumption of this Lease the sum of the then Fixed Rent as security for the faithful performance and observance by such assignee of the terms and obligations of this Lease, which sum shall be held by Landlord in accordance with the provisions of clauses (a)Article 31, (cii) and (d) furnish Landlord with financial statements of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally assignee for the purpose prior three (3) fiscal years, as finally determined after an audit and certified as correct by a certified public accountant, which financial statements shall show a net worth of transferring at least six (6) times the leasehold estate created by then Fixed Rent for each of such three (3) years, (iii) grant to Landlord a security interest in such property of the proposed assignee as Landlord shall deem necessary to secure such assignee’s future performance under this Lease, and provided further(iv) provide such other information or take such action as Landlord, that the assignee has a net worth at least equal in its reasonable judgment shall determine is necessary to or in excess provide adequate assurance of the net worth performance by such assignee of Tenant as of its obligations under the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummatedLease.
Appears in 1 contract
Samples: Lease Agreement (Travelzoo Inc)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 15.1. Except as otherwise provided in this Article 1415, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise ; or authorize a broker (d) permit the Premises or any part thereof to advertise be occupied or used for a subtenant desk space, mailing privileges or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayedotherwise by any person other than Tenant.
Section 14.2 15.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 1415, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 1415, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 1415, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interests in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that an initial public or secondary offering or the transfer of the outstanding capital stock of any corporate tenant, subtenant or subtenantparent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "“affiliates" ” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "“over-the-counter market" ” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactionstransactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant tenant, subtenant or subtenant parent so that the shareholders or members of such tenant tenant, subtenant or subtenant parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such tenant or subtenantentity, shall be deemed an assignments assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 1415, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease, and (vi) the change or conversion of Tenant from an entity in which the partners or members have personal liability to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on reasonable request at any time such information and assurances as Landlord may reasonably request to evidence that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 1415 if Landlord has reasonable cause to believe that such a transaction has occurred.
(bB) The provisions of clauses (a), (c) and (d) of Section 14.1 15.1, Section 15.3(A), Section 15.4(B), Section 15.4(C), Section 15.5 and Section 15.6 shall not apply to transactions with (and Landlord’s consent shall not be required for) (i) a corporation into change in ownership of Tenant as a result of a merger, consolidation or with which Tenant is merged reorganization or consolidated or with a Person to which the sale of substantially all of Tenant's ’s assets are transferred (provided such merger merger, consolidation, reorganization or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger transaction); (ii) the sale, exchange, issuance or transferother transfer of Tenant’s stock on a national stock exchange (including in connection with any initial public offering in a single or series of transactions); or (iii) the assignment of this Lease or sublease of all or any portion of the Premises to, whichever is greater) oror the use of the Premises by, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or which controls, is controlled by Tenant or is under the common control with Tenantof Tenant (each, a “Permitted Transfer” and such transferee, a “Permitted Transferee”). Tenant shall notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory requirements or contractual confidentiality provision applicable to Tenant, in which event Tenant shall notify Landlord promptly after Tenant is permitted to do so.
(C) The term “control” as used in this Lease (i) in the case of a corporation shall mean ownership of more than fifty (50%) percent of the outstanding capital stock of that corporation, (ii) in the case of a general or limited liability partnership, shall mean ownership of more than fifty (50%) percent of the general partnership or membership interests of the partnership, (iii) in the case of a limited partnership, shall mean ownership of more than fifty (50%) percent of the general partnership interests of such limited partnership, and (iv) in the case of a limited liability company, shall mean ownership of more than fifty (50%) percent of the membership interests of such limited liability company.
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Samples: Lease Agreement (Squarespace, Inc.)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except (a) Xxcept as otherwise provided in this Article 14Paragraph 6, Tenant shall not (ai) assign this Lease Agreement (whether by operation of law, transfers of interests in Tenant or otherwise); or (bii) mortgage or encumber Tenant's interest in this LeaseAgreement, in whole or in part; or (ciii) sublet, or permit the subletting of, the Premises or any part thereof; or (iv) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld or delayed.
Section 14.2 (b) If Tenant's interest in this Lease Agreement shall be assigned in violation of the provisions of this Article 14Paragraph 6, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 14Paragraph 6, Landlord, after default by Tenant under this LeaseAgreement, may collect any item of Rental rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental rental reserved in this LeaseAgreement. No such assignment, subletting, occupancy, or use, whether with or without Landlord's Landlords prior consent, nor any such collection or application of Rental rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease Agreement or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this LeaseAgreement. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease Agreement is assigned with Landlord's consent shall be deemed without more to have assumed all of the obligations arising under this Lease Agreement from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant's primary liability hereunder shall continue notwithstanding (ai) any subsequent amendment hereof, or (bii) Landlord's forbearance in enforcing against Tenant any obligation or liability, or (iii) the release of any subsequent Tenant hereunder from any obligation or liability, without notice to Tenant, to each all of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this LeaseAgreement, the liability under this Section 14.2 Paragraph 6(b) of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 14Paragraph 6, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interests in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this LeaseAgreement, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or subtenantparent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant's or subtenant's parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant's or subtenant's parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant's or subtenant's parent, in a single transaction or a series of related or unrelated transactionstransactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant tenant, subtenant or subtenant parent so that the shareholders or members of such tenant tenant, subtenant or subtenant parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such tenant or subtenantentity, shall be deemed an assignments assignment of this LeaseAgreement, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease Agreement shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease Agreement passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14Paragraph 6, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease, and (vi) the change or conversion of Tenant from an entity in which the partners or members have personal liability to a limited liability company, a limited liability partnership or any other entity which possesses the characteristics of limited liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on request upon demand at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14Paragraph 6.
(bB) The provisions of clauses (a), (cParagraph 6(a) and (d) of Section 14.1 shall not apply to transactions with a corporation or limited liability company into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger merger, consolidation or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this LeaseAgreement, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and Agreement or as of the date immediately prior to such merger merger, consolidation or transfer, whichever is greater) or, if Tenant is a general, limited or limited liability partnership, with a successor partnership, nor shall the provisions of clause (a), (cParagraph 6(a) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 Except as otherwise provided in this Article 14, (A) The Tenant shall not (ai) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (bii) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (ciii) sublet, or permit the subletting of, the Premises or any part thereof. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, thereof without in each instance, obtaining the prior Landlord’s written consent of Landlordconsent, which shall not be unreasonably withheld in the case of a prospective assignee or delayedLease14TerraceDrive 12/15/2012 sublessee having a credit worthiness at least equal to Tenant’s at the commencement of this Lease, and for uses acceptable to Landlord. In the event of a permitted assignment or sublease, Tenant shall remain liable for all of Tenant’s responsibilities and obligations under this Lease.
(B) Any reorganization, consolidation and/or restructuring of the Tenant shall be deemed an assignment of this Lease or a sublet of the Premises.
Section 14.2 13.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 14Article, such assignment shall be invalid and of no force and effect against Landlord; provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee as a fee for its use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 14Article, Landlord, after default by Tenant under this Lease, Landlord may collect an amount equal to the then Fixed Rent plus any item other items of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the other items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease.
Section 13.3. The consent by In the event that Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain enter into a lease with a potential tenant for the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's consent shall be deemed without more to have assumed all remaining portion of the obligations arising under this Lease from and after Premises; Tenant agrees that there will be a need to share the date of such
(a) any subsequent amendment hereof, or (b) Landlord's forbearance dock area in enforcing against Tenant any obligation or liability, without notice order to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase access the obligations of Tenant under this Lease, the liability under this Section 14.2 remaining portions of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment)warehouse.
(a) For purposes of this Article 14, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any limited partnership tenant or subtenant, or the transfer of control in any limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, or subtenant, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "affiliates" of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "over-the-counter market" or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, in a single transaction or a series of related or unrelated transactions, resulting in a change in the legal or beneficial ownership of such tenant or subtenant so that the shareholders of such tenant or subtenant existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock of such tenant or subtenant, shall be deemed an assignments of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's interest under this lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 14, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, has violated the provisions of this Article 14.
(b) The provisions of clauses (a), (c) and (d) of Section 14.1 shall not apply to transactions with a corporation into or with which Tenant is merged or consolidated or with a Person to which substantially all of Tenant's assets are transferred (provided such merger or transfer of assets is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as of the date of this Lease and as of the date immediately prior to such merger or transfer, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or is controlled by Tenant or is under common control with Tenant. Tenant shall notify Landlord before any such transaction is consummated.
Appears in 1 contract
Samples: Lease Agreement (Fenix Parts, Inc.)
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. Section 14.1 15.1. Except as otherwise provided in this Article 1415, Tenant shall not (a) assign this Lease (whether by operation of law, transfers of interests in Tenant or otherwise); or (b) mortgage or encumber Tenant's ’s interest in this Lease, in whole or in part; or (c) sublet, or permit the subletting of, the Premises or any part thereof; or (d) permit the Premises or any part thereof to be occupied or used for desk space, mailing privileges or otherwise by any person other than Tenant. Tenant shall not advertise or authorize a broker to advertise for a subtenant or assignee, without in each instance, obtaining the prior written consent of Landlord, which shall not be unreasonably withheld withheld, conditioned or delayeddelayed to the form of Tenant’s “flyer” or other advertisement.
Section 14.2 15.2. If Tenant's ’s interest in this Lease shall be assigned in violation of the provisions of this Article 1415, such assignment shall be invalid and of no force and effect against Landlord; , provided, however, that Landlord may collect an amount equal to the then Fixed Rent plus any other item of Rental from the assignee assignee, during its occupancy, as a fee for its such use and occupancy. If the Premises or any part thereof are sublet to, or occupied by, or used by, any person other than Tenant, whether or not in violation of this Article 1415, Landlord, after default by Tenant under this Lease, may collect any item of Rental or other sums paid by the subtenant, user or occupant as a fee for its use and occupancy, and shall apply the net amount collected to the Fixed Rent and the items of Rental reserved in this Lease. No such assignment, subletting, occupancy, or use, whether with or without Landlord's ’s prior consent, nor any such collection or application of Rental or fee for use and occupancy, shall be deemed a waiver by Landlord of any term, covenant or condition of this Lease or the acceptance by Landlord of such assignee, subtenant, occupant or user as Tenant hereunder, nor shall the same, in any circumstances, relieve Tenant of any of its obligations under this Lease. The consent by Landlord to any assignment, subletting, occupancy or use shall not relieve Tenant from its obligation to obtain the express prior consent of Landlord to any further assignment, subletting, occupancy or use. Any person to which this Lease is assigned with Landlord's ’s consent shall be deemed without more to have assumed all of the obligations arising under this Lease from and after the date of such
such assignment and shall execute and deliver to Landlord, upon demand, an instrument confirming such assumption. Notwithstanding and subsequent to any assignment, Tenant’s primary liability hereunder shall continue notwithstanding (a) any subsequent amendment hereof, or (b) Landlord's ’s forbearance in enforcing against Tenant any obligation or liability, without notice to Tenant, to each of which Tenant hereby consents in advance. If any such amendment operates to increase the obligations of Tenant under this Lease, the liability under this Section 14.2 15.2 of the assigning Tenant shall continue to be no greater than if such amendment had not been made (unless such party shall have expressly consented in writing to such amendment).
(aA) For purposes of this Article 1415, (i) the transfer of a majority of the issued and outstanding capital stock of any corporate tenant, or of a corporate subtenant, or the transfer of a majority of the total interest in any partnership tenant or subtenant, or the transfer of control in any general or limited liability partnership tenant or subtenant, or the transfer of control a majority of the issued and outstanding membership interests in any a limited liability company tenant or subtenant or the transfer of control in any limited liability partnership tenant or subtenant, however accomplished, whether in a single transaction or in a series of related or unrelated transactions, involving the tenant, subtenant and/or its parent (including, without limitation, and by way of example only, the transfer of a majority of the outstanding capital stock of a company, which company owns 100% of a second tier company, which in turn owns 51% of the outstanding capital stock of a corporate tenant hereunder), shall be deemed an assignment of this Lease, or of such sublease, as the case may be, except that the transfer of the outstanding capital stock of any corporate tenant, subtenant or subtenantparent, shall be deemed not to include the sale of such stock by persons or parties, other than those deemed "“affiliates" ” of Tenant within the meaning of Rule 144 promulgated under the Securities Act of 1933, as amended, through the "“over-the-counter market" ” or through any recognized stock exchange, (ii) any increase in the amount of issued and/or outstanding capital stock of any corporate tenant, or of a corporate subtenant, or such tenant’s or subtenant’s parent, or of the issued and outstanding membership interests in a limited liability company tenant or subtenant, or such tenant’s or subtenant’s parent, and/or the creation of one or more additional classes of capital stock of any corporate tenant or any corporate subtenant, or such tenant’s or subtenant’s parent, in a single transaction or a series of related or unrelated transactionstransactions involving the tenant, subtenant and/or its parent, resulting in a change in the legal or beneficial ownership of such tenant tenant, subtenant or subtenant parent so that the shareholders or members of such tenant tenant, subtenant or subtenant parent existing immediately prior to such transaction or series of transactions shall no longer own a majority of the issued and outstanding capital stock or membership interests of such tenant or subtenantentity, shall be deemed an assignments assignment of this Lease, (iii) an agreement by any other person or entity, directly or indirectly, to assume Tenant's ’s obligations under this Lease shall be deemed an assignment, (iv) any person or legal representative of Tenant, to whom Tenant's ’s interest under this lease Lease passes by operation of law, or otherwise, shall be bound by the provisions of this Article 1415, and (v) a modification, amendment or extension of a sublease shall be deemed a sublease. Tenant agrees (x) to furnish to Landlord on request at any time such information and assurances as Landlord may reasonably request that neither Tenant, nor any previously permitted subtenant, Tenant has not violated the provisions of this Article 1415 and (y) upon Landlord’s request, to request from any previously permitted subtenant such information that Landlord may reasonably request that such subtenant has not violated the provisions of this Article 15.
(bB) The provisions of clauses (a), (c) and (d) of Section 14.1 15.1, Section 15.3(A), Section 15.4(B), Section 15.5 and Section 15.6 shall not apply to transactions with (and Landlord’s consent shall not be required for)
(i) a corporation into change in ownership of Tenant as a result of a merger, consolidation or with which Tenant is merged reorganization or consolidated or with a Person to which the sale of substantially all of Tenant's ’s assets are transferred or membership interests (provided such merger merger, consolidation, reorganization or transfer of assets or membership interests is for a good valid business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease, and provided further, that the assignee has a net worth at least equal to or in excess of the net worth of Tenant as at the time of execution of this Lease); (ii) the date sale, exchange, issuance or other transfer of Tenant’s stock on a national stock exchange; or (iii) the assignment of this Lease and as or sublease of all or any portion of the date immediately prior to such merger Premises to, or transferthe use of the Premises by, whichever is greater) or, if Tenant is a partnership, with a successor partnership, nor shall the provisions of clause (a), (c) and (d) of Section 14.1 apply to transactions with an entity that controls or which controls, is controlled by Tenant or is under the common control with of Tenant. Tenant shall notify Landlord before any such transaction is consummated, unless such prior notice violates any securities laws or regulatory or confidentiality requirements applicable to Tenant, in which event Tenant shall notify Landlord promptly after Tenant is permitted to do so.
Appears in 1 contract
