ASSIGNMENT, SUBLETTING, MORTGAGING. Section 10.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation of law or otherwise, and that neither the Demised Premises, nor any part thereof will be sublet or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, Landlord, upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may collect Fixed Rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Rent, additional rent and other charges herein provided, but unless Landlord in its sole discretion otherwise elects, no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant by Tenant under this Article 10, nor shall the same be deemed the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance of the covenants and agreements on the part of Tenant to be performed herein contained. (b) If Landlord shall for any reason or cause recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.

Appears in 2 contracts

Samples: Lease Agreement (Inter Parfums Inc), Lease Agreement (Inter Parfums Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to ~~a single subtenant~~be occupied or used by others for desk space, ~~provided that Xxxxxx has complied with~~ mailing privileges or otherwise, without Landlord's prior written consent in each instance, which consent shall not be unreasonably withheld or delayed subject to the provisions of ~~Paragraph A above~~Section 11.07. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance, which consent shall not be unreasonably withheld or delayed subject to the provisions of Section 11.07. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised 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 not less than thirty (30) nor more than 180 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 Demised Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such space (hereinafter called the "Leaseback Space") from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or part of the Demised Premises), (ii) terminate this Lease (if the proposed transaction is an assignment or a sublease (whether by one sublease or a series of related or unrelated subleases) of all or substantially all of the Demised Premises, or (iii) terminate this Lease with respect to the Leaseback Space (if the proposed transaction is a sublease of part of the Demised Premises). Said options may be exercised by Landlord by notice to Tenant at any time within twenty (20) days after such notice has been given by Tenant to Landlord; and during such twenty (20) day period Tenant shall not assign this Lease nor sublet such space to any person. Section 11.03. If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet (whether by one sublease or a series of related or unrelated subleases) all or substantially all of the Demised Premises, then this Lease shall ~~for~~ end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the minimum rent and additional rent shall be paid and apportioned to such date. Section 11.04. If Landlord exercises its option to terminate this Lease in part in any ~~reason or cause recover or come into possession~~ case there Tenant desires to sublet part of the Demised Premises, then (a) this Lease shall end and expire with respect to such part of the Demised Premises ~~before~~ on the ~~Expiration Date~~date that the proposed sublease was to commence; and (b) from and after such date the minimum rent and additional rent shall be adjusted, ~~Landlord shall have~~ based upon the ~~right at its option to take over any and all subleases or sublettings~~ proportion that the rentable area of the Demised Premises ~~or any part or parts thereof made or granted by Xxxxxx and~~ remaining bears to ~~succeed to all~~ the ~~rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such~~ total rentable area of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.Demised Premises; and

Appears in 2 contracts

Samples: Lease Agreement (Cmgi Inc), Lease (Cmgi Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ (a) Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred,~~ not by operation of law or otherwise, assign, mortgage or otherwise encumber this Lease, nor the estate and ~~that neither~~ Term hereby granted, nor sublet or permit the Demised Premises or any part thereof to be used by others, without Landlord's prior written consent in each instance. The consent by Landlord to any assignment or subletting shall not in any manner be construed to relieve Tenant from obtaining Landlord's express written consent to any other or further assignment or subletting. If Tenant desires to assign or sublet all or any portion of the Demised Premises, ~~nor any part thereof will be sublet or advertised~~ Tenant agrees to use as its exclusive rental agent for ~~subletting or occupied by anyone other than Tenant, or for any~~ such purpose ~~other than as hereinafter set forth, without~~ the ~~prior written consent~~ then designated leasing agent of ~~Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation~~ the Building and to notify such leasing agent of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires its desire to assign this Lease or sublet ~~all of~~ the Demised Premises. Upon obtaining a proposed assignee or sublessee, upon terms satisfactory to Tenant, Tenant shall ~~deliver~~ submit to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) ~~a duly executed counterpart of the term sheet or such other written agreement which includes all of~~ the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the ~~experience of the principals~~ business of the proposed assignee or subtenant and any other information reasonably requested by Landlord; . Upon receipt of the foregoing submission from Tenant Landlord shall have the following options to be exercised within fifteen (415) Business Days from the date of such receipt: 1. If an assignment shall be proposed or if a ~~financial statement~~ proposed subletting shall be for all or substantially all of the Demised Premises, Landlord shall have the option to terminate this Lease effective as of the date proposed by Tenant for such assignment or subletting. 2. If a proposed sublease shall be for less than all or substantially all of the Demised Premises or if it shall be for less than the balance of the Term of this Lease, Landlord shall have the option to terminate this Lease as to the portion of the Demised Premises proposed to be sublet for such portion of the Term as is included in such proposed sublease, effective as of the effective date of such proposed sublease. In the event of the exercise of such option under this subparagraph 2, the rent and all other charges payable hereunder shall be equitably apportioned, and Tenant shall be responsible for the cost of constructing any necessary demising walls. (a) Landlord shall have the option to require Tenant to execute an assignment or sublease to Landlord, or to any party designated by Landlord, upon the same terms and conditions as contemplated with the proposed assignee or subtenant, except that (A) Landlord (or Landlord's designee) as assignee or sublessee shall have an express unlimited right to further assign or sublease to others and ~~its principals if not a publicly owned entity~~to make any alterations required in connection therewith, ~~certified~~ and (B) the rent or consideration payable under such assignment or sublease to Landlord (or Landlord's designee) shall be the lower of (i) the rental payable by ~~a certified public accountant~~ Tenant to Landlord under this Lease, or ~~financial officer of~~ (ii) the rental payable by the proposed assignee or subtenant pursuant to the assignment or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease ~~or assignment~~ originally proposed by Tenant. (b) ~~Xxxxxxxx agrees~~ If Landlord shall not ~~to unreasonably withhold~~ exercise any of its foregoing options within the time set forth above, provided Tenant shall not then be in default hereunder, Landlord's consent to an any such proposed assignment or subletting shall not be "unreasonably" withheld, as described in paragraph (c) of this Section 11. 01. If Landlord shall not exercise any of the options described in paragraph (a) above and Tenant shall thereupon assign this Lease or ~~a subletting~~ sublet all or any portion of the ~~whole (but not part)~~ Demised Premises, then and in that event Tenant shall pay to Landlord as additional rent the difference, if any, between the Fixed Rent plus additional rent allocable to that part of the Demised Premises affected by such assignment or sublease pursuant to ~~a single subtenant, provided that Xxxxxx has complied with~~ the provisions of ~~Paragraph A above~~this Lease, and the Fixed Rent and additional rent payable by the assignee or sublessee to Tenant. Such additional rent payments shall be made monthly within five (5) days after receipt of the same by Tenant. Any other cash or other consideration payable to Tenant in connection with such assignment or sublease or the sale of Tenant's property in connection therewith shall be similarly paid over to Landlord when and as received by Tenant. If Tenant fails to consummate any proposed assignment or subletting to which Landlord shall have consented within sixty (60) days after granting such consent, paragraph (a) shall again apply to said proposed assignment or subletting. No option exercised by Landlord pursuant to the above provisions of paragraph (a), and no assignment or sublease made to Landlord under the above provisions of paragraph (a), shall be binding upon any purchaser of any ground or underlying lease who acquires such ground or underlying lease by reason of the foreclosure of any mortgage to which this Lease is subordinate, nor upon any assignee of any ground or underlying lease who takes such assignment in lieu of such foreclosure, it being understood, however, that such purchaser or assignee may, at its option, elect to enforce such option, assignment or sublease. (c) In determining ~~reasonableness~~reasonableness with respect to its consent to a proposed assignment or sublease by Tenant, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the following: (i) the financial stability ~~(given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation~~ and business ~~experience~~ reputation of the proposed assignee or ~~subtenant~~ subtenant; (ii) the nature of the business and the proposed use of the Demised Premises ~~(which~~ by the proposed ~~use, subject~~ assignee or subtenant in relation to ~~this subparagraph (b) and Section 10.02(e), may differ from~~ the ~~Authorized Use) subsequent to such subletting or assignment.~~majority of other tenants in the Building; (ciii) ~~If Xxxxxx believes~~ that the proposed assignee or subtenant shall not be a tenant of other space in the Building or a party which has dealt with Landlord ~~has unreasonably withheld its consent~~ or Landlord's agent (directly or through a broker) with respect to ~~a proposed subletting or assignment, Tenant may, within twenty~~ space in the Building during the six (206) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxxmonths immediately preceding Tenant's request for Landlord's ~~consent and~~consent, provided Landlord has space in the Building for such ~~event, upon the date specified in Tenant's notice of its intention to assign this Lease~~ proposed assignee or ~~sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder.~~subtenant; (eiv) ~~No part~~ restrictions contained in leases of other tenants of the Building; (v) the effect that the proposed assignee's or subtenant's occupancy or use of the Demised Premises ~~may be used, assigned or sublet for~~ would have upon the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part operation and maintenance of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade Building and Landlord's investment therein; (~~containing~~ vi) that not more than ~~four (4) electronic games). "Training or education facility" by definition~~ one entity shall ~~include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or~~ occupy the Demised Premises at any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing lawstime. ~~(a)~~ Section 11.02. If this Lease ~~is assigned~~ shall be assigned, or if the Demised Premises is or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may after default by Tenant, ~~upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant or ~~occupant,~~ occupant and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions and covenants of this Lease. Section 11.03. Each assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the rent, additional rent and adjustments of rent, and for the due performance of all the ~~covenants~~ terms, covenants, conditions and agreements herein contained on ~~the~~ Tenant's part ~~of Tenant~~ to be performed ~~herein contained~~for the Term of this Lease. Notwithstanding the forgoing, in the event of an assignment of this Lease to an entity whose business and intended use of the Demised Premises is acceptable to Landlord and which has a net worth, as determined in accordance with generally accepted accounting principals, at least equal to the net worth, similarly determined, of Tenant as of the date of this Lease then, in such event, Landlord agrees to release Tenant from any and all liability arising under this Lease from after the effective date of such assignment. No assignment shall be binding on Landlord unless such assignee or Tenant shall deliver to Landlord a duplicate original of the instrument of assignment which contains a covenant of assumption by the assignee of all of the obligations aforesaid and shall obtain from Landlord the aforesaid written consent prior thereto. ~~(b)~~ Section 11.04. For the purposes of this Lease, any sale, transfer or assignment of any of the stock of a corporate Tenant or any transfer in the control of Tenant by operation of law or otherwise shall be deemed an assignment. Section 11.05. The listing of any name other than that of Tenant, whether on the doors of the Demised Premises, on the Building directory or otherwise, shall not operate to vest any right or interest in this Lease or the Demised Premises. It is expressly understood that any such listing is a privilege extended by Landlord that is revocable at will by written notice to Tenant. Section 11.06. Tenant shall reimburse Landlord for any costs incurred by Landlord to review the requested consent provided in Article 11, including attorneys' fees. Section 11.07. If Landlord shall ~~for any reason or cause~~ recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right ~~at its option~~ to take over any ~~and all subleases or sublettings of the Demised Premises or any part or parts thereof~~ sublease made ~~or granted~~ by ~~Xxxxxx~~ Tenant and to succeed to all ~~the rights and privileges~~ lights of ~~said subleases and sublettings or such of them as it may elect to take over and assume; and~~ Tenant thereunder, Tenant hereby ~~expressly assigns and transfers to Landlord such~~ assigning (effective as of the date of Landlord's succession of Tenant's estate in the Demised Premises) such subleases ~~and sublettings~~ as Landlord may elect to take ~~over~~ over. Every subletting hereunder shall be subject to the condition that, from and ~~assume~~ after the termination of this Lease or re-entry by Landlord hereunder or other succession by Landlord to Tenant's estate in the Demised Premises, the subtenant under such sublease shall waive any right to surrender possession or to terminate the sublease and, at Landlord's election, shall be bound to Landlord for the ~~time~~ balance of the term thereof and shall attorn to and recognize Landlord, as its landlord, under all of the then executory terms of such ~~recovery~~ sublease, except that Landlord shall not be (a) liable for any previous act, omission or negligence of ~~possession~~Tenant under such sublease, (b) subject to any counterclaim, defense or offset theretofore accruing to such subtenant against Tenant, (c) bound by any previous modification or amendment of such sublease made without Landlord's consent or by any previous prepayment of more than one month's rent and additional rent unless paid as provided in the sublease, or (d) obligated to perform any repairs or other work in the subleased space or the Building beyond Landlord's obligations under this Lease, and each subtenant shall execute and deliver such instruments as Landlord may reasonably request to evidence and confirm such attornment. Section 11.08. Notwithstanding anything to the contrary elsewhere contained herein (including Section 11.01(a) hereof), provided that Tenant shall not be in default in any of the terms of this Lease beyond notice and the expiration of any applicable grace period, Tenant may, without Landlord's consent but upon ~~request~~ not less than ten (10) days' prior written notice to Landlord, sublet to any corporations or other business entities which control, are controlled by, or are under common control with Tenant (herein referred to as a "Related Entity") all or part of ~~Landlord execute~~the Demised Premises or permit any Related Entity to occupy the same for any of the purposes permitted to Tenant, ~~acknowledge and~~ subject however to compliance with Tenant's obligations under this Lease. Such subletting or occupancy shall not be deemed to vest in any such Related Entity any right or interest in this Lease nor shall such subletting or occupancy relieve, release, impair or discharge any of Tenant's obligations hereunder. Tenant shall deliver to Landlord a copy of any such ~~further assignments~~ sublease or occupancy agreement for all or any portion of the Demised Premises. Section 11.09. Notwithstanding anything to the contrary elsewhere contained herein (including Section 11.01(a), which shall not be applicable to an assignment or transfer pursuant to this Section 11.09), Tenant may, upon prior written notice to Landlord, assign or transfer its entire interest in this Lease and ~~transfers~~ the leasehold estate hereby created to a "Successor Corporation" (as such term is hereinafter defined) of Tenant, provided that Tenant shall not be in default in any of the terms of this Lease beyond notice and the expiration of any applicable grace period. A "Successor Corporation", as used in this Section, shall mean (a) a corporation into which or with which Tenant, its corporate successors or permitted assigns, is merged or consolidated, in accordance with applicable statutory provisions for the merger or consolidation of a corporation, provided that by operation of law or by effective provisions contained in the instruments of merger or consolidation, the liabilities of the corporations participating in such merger or consolidation are assumed by the corporation surviving such merger or consolidation, or (b) a corporation, partnership or other business entity acquiring this Lease and the Term and the estate hereby granted, the goodwill and all or substantially all of the other property and assets (other than capital stock of such acquired corporation) of Tenant, its corporate successors or permitted assigns, and assuming all or substantially all of the liabilities of Tenant, its corporate successors or permitted assigns, or (c) any corporate successor to a Successor Corporation becoming such by either of the methods described in subdivisions (a) and (b) above, provided that, (x) immediately after giving effect to any such merger or consolidation, or such acquisition and assumption, as the case may be, the corporation, partnership or other business entity surviving such merger or created by such consolidation or acquiring such assets and assuming such liabilities, as the case may be, shall have a net worth, as determined in accordance with generally accepted accounting principles, at least equal to the greater of (i) the net worth, similarly determined, of Tenant, immediately prior to such merger or consolidation or such acquisition and assumption, as the case may be, or (ii) the net worth, similarly determined, of Tenant as of the date of this Lease and (y) proof of such net worth, as evidenced by a statement from a certified public accounting firm reasonably satisfactory to Landlord shall have been delivered to Landlord at least ten (10) days prior to the effective date of any such merger or consolidation, or acquisition and assumption, as the case may be. Upon the compliance with the foregoing provisions of this Section 11.09, and the delivery to Landlord of the agreement of the Successor Corporation, in form and substance satisfactory to Landlord, to assume all the terms of this Lease to be ~~necessary~~performed by Tenant, ~~sufficient~~ and ~~proper~~ to ~~vest in Landlord~~ be bound thereby, the ~~then existing subleases~~ corporation, partnership or other business entity so assigning or transferring this Lease shall thereafter be released and ~~subletting~~discharged from any obligations thereafter arising under this Lease.

Appears in 2 contracts

Samples: Lease (Ticketmaster Online Citysearch Inc), Lease (Citysearch Inc)

Appears in 1 contract

Samples: Lease Agreement (Caminus Corp)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ a. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation of law or otherwise, and that neither the Demised Premises, nor any part thereof will be sublet or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer not by operation of law or otherwise ~~of (i) Tenant's interest in~~ assign, mortgage or encumber this Lease, nor sublet or ~~(ii) 50%~~ permit the Demised Premises or ~~more interest~~ any part thereof to be used by others, without Owner's prior express written consent in each instance. The consent by Owner to any assignment or subletting shall not in any manner be construed to relieve Tenant ~~(whether~~ from obtaining Owner's express written consent to any other or further assignment or subletting nor shall any such consent by ~~way~~ Owner serve to relieve or release Tenant from its obligations to fully and faithfully observe and perform all of ~~stock~~the terms, ~~limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment~~ covenants and conditions of this Lease ~~for purposes of this Article~~on Tenant's part to be observed and performed. ~~(a)~~ b. If Tenant ~~desires~~ shall desire to assign ~~this Lease~~ or to sublet all or any portion of the Demised Premises, Tenant shall ~~deliver~~ give notice thereof to ~~Landlord~~ Owner and in ~~writing~~ said notice shall set forth all pertinent business terms of the proposed assignment or subletting as well as the name and address of the proposed assignee or sublessee, information as to financial condition of such assignee or Sublessee and proposed use which assignee or Sublessee desires to make of the Demised Premises. Said notice shall bear the signature of the proposed sublessee or assignee attesting to its accuracy. Tenant shall in addition, at Owner's request, furnish such other further information as Owner may request concerning such proposed assignment or subletting. After receipt of such notice from Tenant, Owner shall have the following options to be exercised within sixty (60) days from the later to occur of: the receipt of Tenant's notice, or if Owner shall request additional information from Tenant, the receipt of such additional information when furnished by Tenant: (1) In the event Tenant's notice is of Tenant's desire to make an assignment or a subletting of all or substantially all of the Demised Premises Owner shall have the option to cancel and terminate this Lease as of the date proposed by Tenant for such assignment or subletting, which option shall be exercised within the aforesaid sixty (60) day period and on which date the term of this Lease shall cease and expire with the same force and effect as if such date were originally provided herein as the expiration of the term hereof. (2) In the event Tenant's notice is of Tenant's desire to make a subletting for less than all or substantially all of the Demised Premises, Owner shall have the option, to be exercised within said sixty (60) day period, of canceling and terminating this Lease only as to such portion of the Demised Premises to take effect as of the proposed effective date thereof as stated in Tenant's notice. In the event Owner exercises its option under this subparagraph (2) the rent and all other charges payable hereunder shall be equitably adjusted and apportioned. c. If Owner does not exercise its right of cancellation under either of the foregoing two options granted under subparagraph (b) hereof within the time set forth therein, Tenant agrees to then use Glen Xxxities LTD. as its exclusive rental agent, having the sole and exclusive right to lease, at agent's then prevailing commission rates, and to promptly notify such renting agent of its desire to assign or sublet its Lease, (notwithstanding the foregoing, Tenant shall have the right to attempt to assign Tenant's interest in this Lease or sublease all or portions of the Demised Premises to third parties procured by Tenant or by outside brokers whom Tenant may wish to utilize provided, however that such assignment shall be subject to the provisions of Article 11; the above paragraph (b) Owner's options, as well as the following provisions of this Article and further that in the event of such an assignment or subleasing Tenant shall obtaining a proposed assignee or subleases, upon terms satisfactory to Tenant, Tenant shall submit to Owner in writing: (i) the name of the proposed assignee or subtenant; (2ii) ~~a duly executed counterpart of the term sheet or such other written agreement which includes all of~~ the terms and conditions of the proposed assignment or subletting; (3iii) the nature and character of the ~~experience of the principals of the proposed assignee or subtenant~~ business and ~~any other information reasonably requested by Landlord; (4) a financial statement~~ credit of the proposed assignee or subtenant, and any other information reasonably requested by the Owner. Owner shall have the further option, to be exercised within thirty (30) business days from submission of Tenant's request, to require Tenant to execute an assignment or sublease to Owner or Owner's designee on the same terms and conditions in Owner's own name, or the name of Owner's designee, with a right to sublease to others without Tenant's consent being required for such or any further sublettings. If Owner shall not exercise its ~~principals if not a publicly owned entity~~foregoing further option within the time set forth, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the any such proposed assignment or ~~sublease~~subletting shall not be unreasonably withheld or unduly delayed, ~~including~~provided, ~~without limitation~~however, that Owner may withhold consent thereto if in the exercise of its sole judgment it determines that: (1) The financial ~~stability (given the obligations hereunder~~ condition and ~~the fact that Xxxxxx has not been released from liability, to the extent applicable)~~ general reputation ~~and business experience~~ of the proposed assignee or subtenant ~~and~~ are not consistent with the extent of the obligation undertaken by the proposed assignment or sublease. (2) The proposed use of the Demised Premises ~~(which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from~~ is not appropriate for the ~~Authorized Use) subsequent to such subletting~~ Building or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in ~~accordance~~ keeping with the ~~expedited procedures~~ character of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted existing tenancies or permitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's ~~notice of its intention~~ Lease (but the foregoing shall not be deemed to ~~assign this Lease or sublet~~ enlarge the ~~Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of~~ purposes for which the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, Landlord, upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may collect Fixed Rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Rent, additional rent and other charges herein provided, but unless Landlord in its sole discretion otherwise elects, no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant by Tenant under this Article 10, nor shall the same be deemed the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance of the covenants and agreements on the part of Tenant are permitted to be ~~performed herein contained~~used as set forth in this Lease). (b) If Landlord shall for any reason or cause recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.

Appears in 1 contract

Samples: Office Lease (Virage Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ (A) Tenant ~~covenants and agrees~~will not by operation of law or otherwise, ~~for Tenant and Xxxxxx's heirs~~assign, ~~distributees~~mortgage or encumber this Lease, ~~executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor~~ not sublet or permit the ~~term and estate hereby granted, nor~~ Demised Premises or any part ~~hereof or thereof~~thereof to be used by others, ~~will be assigned~~without Landlord's prior express written consent in each instance. Subject to the provisions of Paragraph (47)(B)(vii) hereinbelow, ~~or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~any transfer, by operation of law or otherwise, and that neither the Demised Premises, nor any part thereof will be sublet or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of ~~Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i)~~ Tenant's interest in this ~~Lease,~~ Lease (in whole or in part) or of a fifty (ii50%) ~~50%~~ percent or ~~more~~ greater interest in Tenant (whether ~~by way of~~ stock, ~~limited and/or general~~ partnership interest or otherwise~~), in a single transaction or a related or unrelated series of transactions,~~ ) shall be deemed an assignment of this Lease within the meaning of this Article. (The issuance of shares of stock to other than the existing shareholders shall be deemed to be a transfer of such stock for the purposes of this Article.) Subject to the provisions of Paragraph (47)(B)(vii) hereinbelow, if there has been a previous transfer of less than a fifty (50%) percent interest in Tenant during the term of this Lease, any other transfer of an interest in Tenant which would then result in an aggregate transfer of greater than a fifty (50%) percent interest in Tenant shall be deemed an assignment of Tenant's interest in this Lease within the meaning of this Article. (ai) If In the event that Tenant ~~desires~~ shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or any part of the Demised Premises, Tenant shall ~~deliver~~ give notice (the "Assignment/Sublet Notice") thereof to ~~Landlord in writing~~ Landlord, which notice shall be accompanied by (1a) ~~the name of the proposed assignee~~ at Tenant's option, either a conformed or ~~subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions~~ photostatic copy of the proposed assignment or ~~subletting;~~ sublease agreement (3provided, however that such proposed assignment or sublease agreement need not be in executed form if accompanied by a writing signed by Tenant and the proposed assignee or sublessee indicating their intent to enter into the proposed assignment or sublease upon Landlord consenting thereto), or a copy of a letter of intent (the "Letter of Intent") ~~the nature~~ executed by or on behalf of Tenant and ~~character of the experience of the principals of~~ the proposed assignee or subtenant ~~and any other information reasonably requested by Landlord;~~ setting forth the material business terms of the proposed assignment or sublease, in either event, the effective or commencement date of which shall be at least fifteen (415) business days after the giving of such notice, (b) a ~~financial~~ statement setting forth in reasonable detail the identity of the proposed assignee or subtenant, the nature of its business and its ~~principals if not a publicly owned entity, certified to by a certified public accountant or financial officer~~ proposed use of the ~~proposed subtenant or assignee as of a date not more than twelve~~ Demised Premises, (12c) ~~months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable~~ current financial information with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed ~~assignment~~ assignee or ~~sublease~~subtenant, including, without limitation, its most recent financial report or statement (if same exists, and if not, the ~~financial stability~~ equivalent information in a form reasonably satisfactory to Landlord), and (d) such other information as Landlord may reasonably request. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option: (i) terminate this Lease (if the proposed transaction is an assignment or sublease of all or substantially all of the Demised Premises), or (ii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Demised Premises for all or substantially all of the remainder of the term of this Lease, i.e., the term of which expires during the final eighteen (18) months prior to the Expiration Date). For purposes of this paragraph, "substantially all of the Demised Premises" shall mean more than seventy (70%) percent thereof. Said options may be exercised by Landlord by notice to Tenant at any time within fifteen (15) business days after Landlord's receipt of the Assignment/Sublet Notice, together with all other documentation and information required pursuant to this paragraph to be given by Tenant to Landlord ("Recapture Period"); and during such Recapture Period Tenant shall not assign this Lease or sublet such space to any person. Following the ~~obligations~~ expiration of the Recapture Period, Tenant shall have thirty (30) days to submit to Landlord Tenant's written request for Landlord's consent to a proposed assignment or sublease on the same terms and conditions as were contained in the proposed assignment or sublease or the Letter of Intent, which was previously submitted to Landlord pursuant to this Section, whichever is applicable. In the event that Tenant fails to submit such written request for Landlord's consent as set forth in the preceding sentence within such 30 day period, then in connection for with any request for Landlord's consent to such proposed assignment of this Lease or proposed subletting of the Demised Premises or any portion thereof submitted after such 30 day period, Tenant will be required to comply with all of the requirements of this paragraph and Landlord shall have all the options under this paragraph. (ii) If Landlord exercises its option to terminate this Lease in the event that Tenant desires either to assign this Lease or to sublet all or substantially all of the Demised Premises, then this Lease shall end and expire upon the date that such assignment or subletting was to be effective or to commence, as the case may be, and the Minimum Rent and Additional Rent shall be paid and apportioned to such date. If Landlord exercises its option to terminate this Lease as to a portion of the Demised Premises in the event that Tenant desires to sublet a portion of the Demised Premises, then this Lease, with respect to the portion of the Demised Premises affected by such subletting, shall end and expire upon the date that such subletting was to commence, the Minimum Rent payable hereunder and the ~~fact that Xxxxxx has not been released from liability,~~ Additional Rent payable pursuant to this Lease hereof shall be adjusted in proportion to the ~~extent applicable~~portion of the Demised Premises affected by such termination and Tenant shall at its sole cost and expense (and prior to the effective date of said sublease) ~~reputation~~ erect such demising walls as are necessary to separate the terminated portion of the Demised Premises from the remainder of the Demised Premises and to provide access thereto. (iii) In the event that Tenant complies with the provisions of this subparagraph of this Article and Landlord does not exercise an option provided to it thereunder within the time provided therefor, and provided that Tenant is not in default of any of Tenant's obligations under this Lease, Landlord's consent (which must be in writing and in form reasonably satisfactory to Landlord) to the proposed assignment of this lease or subletting of a portion or all of the Demised Premises shall not be unreasonably withheld or delayed, provided the following conditions have been satisfied: (1) in Landlord's reasonable judgment, the proposed assignee or subtenant is engaged in such a business ~~experience~~ , and the Demised Premises will be used in such a manner, that: (x) is limited to the use expressly permitted under this Lease; and (y) will not violate any negative covenant as to use contained in any other Lease of space in the Building about which Tenant has been informed following its request to Landlord for such information; (2) the proposed assignee or subtenant is a reputable person of good character and with sufficient financial worth considering the responsibility involved, and Landlord has been furnished with reasonable proof thereof; (3) the proposed assignee or sublessee is not then an occupant of any part of the Building who is seeking to relocate to the Demised Premises (or any portion thereof) from any other space in the Building; (4) the proposed assignee or sublessee is not a personwith whom Landlord is then, or shall have been during the previous twelve (12) month period, negotiating to lease space in the Building; (5) Tenant shall have submitted to Landlord a fully executed counterpart of the proposed assignment or the proposed sublease, as the case may be, and the form of the same shall be reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article; (6) The rental rate to be paid by the proposed subtenant is not less than the then current rental rate being charged by Landlord under leases being entered into for comparable space in the Building, and the other terms and conditions of the sublease are the same as those contained in the proposed sublease furnished to Landlord pursuant to paragraph (b) of this Article; (7) Tenant shall reimburse Landlord on demand for an costs that may be incurred by Landlord in connection with said agreement or sublease, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant and the reasonable legal costs incurred in connection with the granting of any requested consent; (8) Tenant shall not have (a) advertised or publicized in any way the availability of the Demised Premises without prior notice to, and approval by, Landlord, which approval Landlord agrees not to unreasonably withhold, nor shall any advertisement state the name (as distinguished from the address) of the Building, or (b) listed the Demised Premises for subletting or assignment, with a broker, agent or representative or otherwise, at a proposed ~~use~~ rental less than the Minimum Rent and Additional Rent at which Landlord is then offering to Lease other space in the Building; (9) the sublease shall not provide for an option on behalf of the subtenant thereunder to extend or renew the term of such sublease and shall also not grant to subtenant any space option or other option set forth in this Lease (which option(s) is (are) only granted to the original Tenant hereunder); (10) such subletter shall not result in there being more than three (3) occupants of the Demised Premises in the 19th floor portion of the Demised Premises (~~which proposed use, subject to this subparagraph (b~~inclusive of Tenant) and ~~Section 10.02(e), may differ from~~ two (2) occupants in the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part 20th floor portion of the Demised Premises ~~may be used, assigned~~ (inclusive of Tenant); and (11) the proposed assignee or ~~sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision~~ subtenant shall not ~~prohibit the sale~~ be (i) a government or ~~rental of "adult"~~ any subdivision or ~~"X-rated" video tapes as part of the business of~~ agency thereof, (ii) a ~~video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display~~ school, college, university or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling educational institution of any ~~boat~~type, ~~motor vehicle~~ whether for profit or ~~trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein~~nonprofit, ~~shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor~~(iii) an employment agency, or ~~video arcade~~ (~~containing more than four (4~~iv) ~~electronic games). "Training or education facility" by definition shall include, without limitation,~~ a ~~beauty school, xxxxxx college, reading room, place~~ provider of ~~instruction, or~~ medical services of any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing lawskind. (aiv) If Each subletting pursuant to this Article shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Lease. Notwithstanding any such subletting and/or acceptance of Minimum Rent or Additional Rent by Landlord from any subtenant, Tenant shall and will remain fully liable for the payment of the Minimum Rent and Additional Rent due, and to become due, hereunder, for the performance of all of the covenants, agreements, terms, provisions and conditions contained in this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, Landlord, upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may collect Fixed Rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Rent, additional rent and other charges herein provided, but unless Landlord in its sole discretion otherwise elects, no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant by Tenant under this Article 10, nor shall the same be deemed the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance of the covenants and agreements on the part of Tenant to be performed ~~herein contained. (b) If Landlord~~ and for all acts and omissions of any licensee, subtenant, or any other person claiming under or through any subtenant that shall ~~for~~ be in violation of any ~~reason or cause recover or come into possession~~ of the obligations of this Lease, and any such violation shall be deemed to be a violation by Tenant. Tenant further agrees that, notwithstanding any such subletting, no other and further subletting of the Demised Premises ~~before the Expiration Date~~by Tenant, ~~Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises~~ or any ~~part~~ person claiming through or ~~parts thereof made~~ under Tenant shall, or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possessionwill be, made, except upon compliance with, and ~~Tenant~~ subject to, the provisions of this Article. (v) Any assignment or transfer shall ~~upon request of Landlord~~ be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Landlord an agreement, in form and substance reasonably satisfactory to Landlord, whereby the assignee shall assume all of the obligations of this Lease on the part of Tenant to be performed or observed and which accrue on and after the effective date of the assignment and whereby the assignee shall agree that the provisions contained in paragraph (a) shall, notwithstanding such ~~further~~ assignment or transfer, continue to be binding upon it in respect of all future assignments and ~~transfers~~ transfers. (vi) If Landlord shall give its consent to any assignment of this Lease or to any sublease, Tenant shall, in consideration therefor, pay to Landlord, as ~~may be necessary~~Additional Rent: (a) in the case of an assignment, ~~sufficient~~ an amount equal to fifty (50%) percent of all sums and ~~proper~~ other consideration payable to ~~vest~~ Tenant by the assignee for, or by reason of, such assignment, including, without limitation, all sums payable for the sale of Tenant's fixtures, Leasehold improvements, equipment, furniture, furnishings, or other personal property (collectively, the "Tenant's Property"), after deducting therefrom "Tenant's Costs" (as defined below); and (b) in ~~Landlord~~ the ~~then existing subleases~~ case of a sublease, fifty (50%) percent of any rents, additional charges, or other consideration payable under the sublease by the subtenant to Tenant that are in excess of the Minimum Rent and ~~subletting~~Additional Rent accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by Tenant hereunder) pursuant to the terms hereof, including, without limitation, all sums paid for the sale or rental of Tenant's Property, after deducting therefrom Tenant's Costs.

Appears in 1 contract

Samples: Office Lease (Gbi Capital Management Corp)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01. Tenant covenants and agrees~~Neither this Lease, ~~for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease~~ nor the term and estate hereby granted, nor any part hereof or thereof, ~~will~~ nor the interest of Tenant in any sublease or the rentals thereunder, shall be assigned~~, or advertised for assignment~~, mortgaged, pledged, encumbered or otherwise ~~transferred,~~ transferred by Tenant by operation of law or otherwise, and ~~that~~ neither the Demised Premises, nor any part ~~thereof will~~ thereof, shall be ~~sublet~~ encumbered in any manner by reason of any act or ~~advertised for subletting~~ omission on the part of Tenant or anyone claiming under or through Tenant, nor shall the Demised Premises be sublet, used or occupied or permitted to be used or occupied, or utilized for desk space or for mailing privileges, by anyone other than ~~Tenant,~~ Tenant or for any purpose other than as ~~hereinafter set forth~~permitted by this Lease, without the prior written consent of ~~Landlord, given or withheld as hereinafter provided,~~ Landlord in every ~~case~~ case, except as expressly otherwise provided in this ~~Section~~Article. ~~Any transfer by operation of law or otherwise of (i) Tenant's interest in this Lease~~Furthermore, ~~or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions,~~ no assignment shall be ~~deemed an assignment of this Lease for purposes of this Article.~~ binding on Landlord unless the assignee shall execute, acknowledge and deliver to Landlord (a) ~~If Tenant desires~~ a duplicate original instrument of assignment in form and substance reasonably satisfactory to ~~assign this Lease or sublet all of the Demised Premises~~Landlord, ~~Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a~~ duly executed ~~counterpart of~~ by Tenant, and (b) an agreement, in form and substance satisfactory to Landlord, duly executed by the ~~term sheet or such other written agreement which includes all of~~ assignee, whereby the assignee shall unconditionally assume in accordance with the terms and conditions of this Lease the ~~proposed assignment or subletting; (3) the nature~~ observance and ~~character~~ performance of, and agree to be bound by all of the ~~experience of the principals of the proposed assignee or subtenant~~ terms, covenants and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment conditions of this Lease on Tenant’s part to be observed or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or subleaseperformed, including, without limitation, the ~~financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience~~ provisions of ~~the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to~~ this ~~subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent~~ Article with respect to ~~a proposed subletting~~ all future assignments; but the failure or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures refusal of the ~~American Arbitration Association ("AAA") Rules~~ assignee to execute or deliver such an agreement shall not release the assignee from its liability for the ~~Real Estate Industry (the "Rules") except that: (i) the list~~ obligations of ~~arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and~~ Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted hereunder assumed by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, Landlord, upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may collect Fixed Rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Rent, additional rent and other charges herein provided, but unless Landlord in its sole discretion otherwise elects, no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant by Tenant under this Article 10, nor shall the same be deemed the acceptance of the ~~assignee, sublessee or occupant as a tenant, or a release~~ assignment of ~~Tenant from the further performance of the covenants and agreements on the part of Tenant to be performed herein contained~~this Lease. (b) If Landlord shall for any reason or cause recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Ust Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ A. Tenant ~~covenants and agrees~~shall have the absolute right to sublet, ~~for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither~~ assign or otherwise transfer its interest in this Lease ~~nor the term and estate hereby granted, nor any part hereof~~ to a parent or ~~thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation~~ operating subsidiary of ~~law or otherwise, and that neither the Demised Premises, nor any part thereof will be sublet or advertised for subletting or occupied by anyone other than~~ Tenant, or ~~for any purpose other than as hereinafter set forth~~subsidiary of Tenant’s parent, or to a corporation with which it may merge or consolidate, without ~~the prior~~ Landlord’s approval, written ~~consent of Landlord, given~~ or ~~withheld as hereinafter provided, in every case except as expressly provided in this Section~~otherwise. Any ~~transfer by operation~~ change in the publicly traded stock of ~~law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in~~ the Tenant ~~(whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall~~ is not deemed to be ~~deemed~~ an assignment ~~of this Lease for purposes of~~ or transfer under this Article. B. The consent by Landlord to any other transfer, assignment, subletting, license or concession agreement, or hypothecation shall not be unreasonably withheld, conditioned or delayed; provided, however , if Landlord fails to respond to any request by Tenant for Landlord’s consent or approval within thirty (a30) ~~If Tenant desires to assign this Lease~~ days of such written request, the consent or ~~sublet all~~ approval of ~~the Demised Premises,~~ Landlord shall be deemed given. Tenant shall ~~deliver~~ submit to Landlord in ~~writing~~ writing: (1) the name of the proposed assignee or subtenant; (2) ~~a duly executed counterpart of the term sheet or such other written agreement which includes all of~~ the terms ~~and conditions~~ of the proposed assignment or ~~subletting~~sublease; and (3) the nature and character of the ~~experience of the principals of~~ business which the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of will conduct in the Demised ~~Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above~~Premises. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, Landlord’s review shall be limited to the ~~extent applicable) reputation and business experience of the proposed assignee~~ subtenant’s or ~~subtenant and the proposed~~ assignee’s intended use of the Demised Premises, which intended use shall not violate a restrictive covenant recorded in the real property records covering the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in ~~accordance with the expedited procedures~~ effect as of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate date this Lease ~~by delivering to~~ is executed, or be illegal or immoral. Tenant ~~within ten (10) business days following Xxxxxx's request for Landlord's consent and~~may not assign all or any part of this Lease, ~~in such event, upon the date specified in Tenant's notice of its intention to assign this Lease~~ nor sublet all or ~~sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No~~ any part of the Demised ~~Premises~~ Premises, if Tenant is in default under this Lease. In addition, Tenant may not request Landlord to consider and/or approve any proposed subletting or assignment if Tenant is in default under this Lease. 8.02. If this Lease shall be ~~used,~~ assigned or sublet ~~for the following uses: nude~~ in accordance with this Article, such assignee or ~~semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision~~ subtenant shall not ~~prohibit the sale~~ be permitted to further assign or ~~rental of "adult"~~ sublet in whole or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing lawsin part. ~~(a)~~ 8.03. If this Lease ~~is assigned~~ shall be assigned, or if the Demised Premises is or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may, ~~upon the occurrence of an Event of Default and~~ after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant, or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, ~~occupancy~~ occupancy, or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant, or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions, and covenants of this Lease. Under no circumstance will any assignment or sublet or otherwise result in a release of Tenant’s obligations for the entire term of this Lease. 8.04. Each permitted assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the fixed rent and additional rent and for the due performance of all the ~~covenants~~ terms, covenants, conditions. and ~~agreements~~ agreement herein contained on ~~the~~ Tenant’s part ~~of Tenant~~ to be performed ~~herein contained. (b) If Landlord~~ for the term of this Lease. No assignment shall for any reason or cause recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and be effective unless Tenant shall ~~upon request of Landlord execute, acknowledge and~~ promptly deliver to Landlord ~~such further assignments~~ a duplicate original of the instrument of assignment, in form reasonably satisfactory to Landlord, containing a covenant of assumption by the assignee of all of the obligations aforesaid and ~~transfers as may be necessary, sufficient and proper to vest in~~ shall obtain from Landlord the ~~then existing subleases and subletting~~aforesaid written consent, prior thereto.

Appears in 1 contract

Samples: Commercial Lease (Ultimate Software Group Inc)

Appears in 1 contract

Samples: Lease Agreement (Medialink Worldwide Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ 14.1 Tenant covenants and ~~agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns,~~ agrees that neither this Lease nor the ~~term~~ Term and estate hereby granted, nor any part hereof or thereof, will be assigned, ~~or advertised for assignment,~~ mortgaged, pledged, encumbered or otherwise transferred, by Tenant or by operation of law or otherwise, and that neither the Demised Premises, nor any part ~~thereof~~ thereof, will be sublet or ~~advertised for subletting or occupied~~ occupied, by anyone other than Tenant, or for any purpose other than as ~~hereinafter~~ set ~~forth~~forth in this Lease, without the prior written consent of ~~Landlord, given or withheld as hereinafter provided,~~ Landlord in every ~~case~~ case, except as expressly provided in ~~this Section~~subparagraph (c) hereinbelow. Any transfer by operation of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment Notwithstanding the foregoing provisions of this ~~Lease for purposes of this Article.~~Section 14.1: (a) If Prior to the agreement by Tenant ~~desires~~ to ~~assign this Lease~~ any assignment or ~~sublet all of the Demised Premises~~subletting, Tenant shall ~~deliver~~ submit to Landlord in ~~writing~~ writing: (1) the name of the proposed assignee or subtenant; (2) a ~~duly executed counterpart~~ copy of the ~~term sheet or such other~~ proposed written agreement ~~which includes~~ including all of the terms and conditions of the proposed assignment or subletting, stating that such agreement shall not become effective unless Landlord hereunder shall consent thereto in writing and which shall contain a provision complying with Section 14.4; (3) the nature and character of the ~~experience of the principals~~ business of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, ~~and its principals if not a publicly owned entity,~~ certified to by a certified public accountant ~~or financial officer of the proposed subtenant or assignee~~ as of a date not more than twelve (12) months prior ~~thereto~~thereto or if not available, such other financial information as may be reasonably acceptable to Landlord; and (5) an agreement by Tenant to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by ~~Tenant~~Tenant in accordance with this Article. Provided Tenant is not in default hereunder (after notice from Landlord if any be required hereunder and the expiration of any applicable grace period)1 Landlord's consent to any such proposed assignment or subletting shall not be "unreasonably" withheld or delayed, in accordance with paragraph (b). This paragraph (a) shall apply to each and every proposed assignment and sublease during the Term hereof, and if Tenant fails to consummate any proposed assignment or sublease to which Landlord shall have consented within one hundred eighty (180) days after granting such consent, this paragraph (a) shall again apply to said proposed assignment or sublease. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed ~~assignment~~ sublease or ~~sublease~~assignment, including, without limitation, the following: (i) the financial stability ~~(given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation~~ and business ~~experience~~ reputation of the proposed assignee or ~~subtenant~~ subtenant; (ii) the nature of the business and the proposed use of the Demised Premises by the proposed assignee or subtenant in relation to the majority of other tenants in the Park; (~~which~~ iii) the proposed ~~use~~assignee or subtenant shall not be a tenant of other space in the Park, ~~subject~~ and shall not be entitled directly or indirectly to ~~this subparagraph~~ diplomatic or sovereign immunity; and (biv) ~~and Section 10.02(e), may differ from~~ not more than two (2) unrelated entities shall occupy the ~~Authorized Use) subsequent to such subletting or assignment~~Demised Premises at any time. (c) ~~If Xxxxxx believes that Landlord has unreasonably withheld its~~ Notwithstanding any contrary provision of this Lease, provided Tenant shall not be in default hereunder (which continues after notice and the expiration of any applicable grace period), this Lease may be assigned at any time without the consent of Landlord, to any corporation into which or with ~~respect~~ which Tenant may be merged or consolidated, or to ~~a proposed subletting~~ any corporation which shall purchase all or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures substantially all of the ~~American Arbitration Association ("AAA") Rules for~~ assets of Tenant, or assigned or sublet in whole or in part to any subsidiary or affiliate of Tenant, provided each of the ~~Real Estate Industry (the "Rules") except that:~~ following conditions shall be complied with: (i) If such assignment shall be to a successor by merger or consolidation, or by acquisition of assets, such successor shall have acquired all or substantially all of the ~~list~~ assets of ~~arbitrators~~ the assignor; (ii) If such assignment or sublease shall be to a subsidiary or affiliate, such subsidiary or affiliate shall have assumed all of the liabilities hereunder of the assignor, and the assignor shall have expressly agreed to continue to remain jointly and severally liable as Tenant hereunder; (iii) The assumptions and agreement referred to in subparagraphs (i) and (ii) above, shall be set forth in written instruments complying with the provisions of Section 14.4 of this Lease; and (iv) The assignee or sublessee shall at all times use the Demised Premises for a purpose permitted by Article 4 hereof; and (v) Subdivision (iv) of paragraph (b) ~~of Rule 57~~ above shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customersapply. For the purposes of this ~~Subsection "e"~~paragraph, ~~"pornographic materials"~~ a corporation shall be ~~any books~~deemed to be a subsidiary of Tenant if fifty (50%) percent or more of its voting stock shall be owned by Tenant, ~~magazines~~and a corporation or other person or entity shall be deemed to be an affiliate of Tenant if it directly or indirectly controls, ~~newspapers~~ is controlled by or ~~videotapes which would be obscene~~ is under ~~prevailing laws~~common control with Tenant. (ad) Notwithstanding the provisions of subparagraphs (b) and (c) above, Tenant shall obtain, at Tenant's cost and expense, all necessary governmental consents and approvals for the occupancy of the Demised Premises, or any portion thereof, by such permitted assignee or sublessee. (e) In the event of the sale or other disposition of all or substantially all of the assets of Tenant during the Term of this Lease, the transferee of assets shall be deemed to have assumed all obligations, covenants and responsibilities of Tenant under this Lease. Upon request of Landlord, the transferee of assets shall deliver to Landlord an instrument in recordable form evidencing the aforesaid assumption of this Lease. 14.2 If this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, ~~Landlord~~and if Tenant is in default (after notice from Landlord if any be required hereunder and the expiration of any applicable grace period), ~~upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice,~~ Landlord may collect Fixed Minimum Rent, ~~additional rent~~ Additional Rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Minimum Rent, ~~additional rent~~ Additional Rent and other charges herein provided, but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection shall be deemed a waiver of ~~any~~ the covenant by Tenant under ~~this Article 10~~Section 14.1, nor shall the same be deemed the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance of the covenants and agreements contained in this Lease on the part of Tenant to be ~~performed herein contained~~performed. 14.3 The consent by Landlord to an assignment or subletting shall not relieve Tenant, the assignee or subtenant from obtaining the express consent in writing of Landlord to any further assignment or subletting required pursuant to this Article 14. 14.4 Each permitted assignee or transferee of this Lease shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the Fixed Minimum Rent, Additional Rent and other charges, and for the due performance of and compliance with all of the terms, covenants, conditions and agreements contained in this Lease on Tenant's part to be performed or complied with for the Term. No assignment, sublease or transfer shall be binding on Landlord unless such assignee, subtenant or transferee of Tenant shall deliver to Landlord a duplicate original of the instrument of assignment, sublease or transfer which (bi) contains a covenant of assumption by the assignee or transferee (other than a subtenant) of all of the obligations aforesaid, (ii) contains a confirmation that Landlord shall have all of the rights set forth in this Article as to any further assignment or subletting superior to and preemptive of any rights of sublessor thereunder, and (iii) in every case, other than pursuant to Section 14.1(c) hereof Landlord shall have consented thereto in advance in writing as required hereunder. In the event of Tenant's failure to comply with the provisions of this Article, Landlord may elect to treat such purported assignee, subtenant or transferee as having assumed this Lease jointly and severally with Tenant, without in any way or to any extent binding Landlord to consent to such purported assignment, sublease or transfer. 14.5 If Landlord shall for any reason or cause recover or come into possession of ~~the~~ said Demised Premises before the ~~Expiration Date~~date hereinbefore fixed for the expiration of the Term, Landlord shall have the right at its option to take over any and all subleases or ~~sublettings~~ subletting of the Demised Premises or any part or parts thereof made or granted by ~~Xxxxxx~~ Tenant and to succeed to ~~all~~ the rights and privileges of Tenant with respect to said subleases and ~~sublettings~~ subletting or such of them as it may elect to take over and assume; , and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and ~~sublettings~~ subletting as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting. By its acceptance of and entry- into a sublease, subtenant thereunder shall be deemed to have thereby agreed that, at Landlord's election, such subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to Landlord, as its landlord, under all of the terms, covenants and conditions of such Sublease.

Appears in 1 contract

Samples: Lease (Schein Pharmaceutical Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ (a) Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred,~~ not by operation of law or otherwise, assign, mortgage or encumber this Lease, nor the estate and ~~that neither~~ Term hereby granted, nor sublet or permit the Demised ~~Premises, nor~~ Premises or any part thereof ~~will~~ to be ~~sublet or advertised for subletting or occupied~~ used by ~~anyone other than Tenant, or for any purpose other than as hereinafter set forth~~others, without ~~the~~ Landlord's prior written consent of in each instance. The consent by Landlord to any assignment or subletting shall not in any manner be construed to relieve Tenant from obtaining Landlord~~, given~~ 's express written consent to any other or ~~withheld as hereinafter provided, in every case except as expressly provided in this Section~~further assignment or subletting. Any transfer by operation of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign or sublet all or any portion of the Demised Premises then, notwithstanding that Tenant shall not have obtained a proposed assignee or subtenant, Tenant shall give written notice ("Tenant's Notice") of such desire to Landlord, setting forth the desired effective date of such assignment or the desired commencement and expiration dates of such subletting, the area to be sublet, the consideration or rent to be payable under such desired assignment or subletting, as the case may be, and other economic terms and conditions of the desired assignment or subletting. In such event, Tenant agrees to use as its exclusive rental agent for such purpose, for a period of ninety (90) days (and thereafter on a non-exclusive basis), the then designated leasing agent of the Building and to notify such leasing agent of its desire to assign this Lease or sublet the Demised Premises. Landlord shall have the following options to be exercised within thirty (30) days from receipt of Tenant's Notice: 1. If an assignment shall be proposed or if such subletting shall be for all or substantially all of the Demised Premises, ~~Tenant~~ Landlord shall ~~deliver~~ have the option to ~~Landlord in writing (1) the name~~ cancel and terminate this Lease as of the date proposed ~~assignee~~ by Tenant for such assignment or ~~subtenant; (~~subletting. 2) . If a ~~duly executed counterpart of the term sheet~~ proposed sublease shall be for less than all or ~~such other written agreement which includes~~ substantially all of the Demised Premises or if it shall be for less than the balance of the Term granted hereunder, Landlord shall have the option to terminate this Lease as to the portion of the Demised Premises proposed to be sublet and for such portion of the Term as is included in such proposed sublease, to take effect as of the effective date thereof. In the event of the exercise of such option under this subparagraph 2, the rent and all other charges payable hereunder shall be equitably apportioned, and Tenant shall be responsible for the cost of constructing any necessary demising walls. 3. Landlord shall have the option to require Tenant to execute an assignment or sublease to Landlord, or to any party designated by Landlord, containing the same terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of as with the proposed assignee or subtenant, except that (A) the assignee or sublessee shall have an express unlimited right to assign or sublease to others, and ~~its principals~~ make any alterations required in connection therewith, and (B) the rent or consideration payable under said assignment or sublease to Landlord or Landlord's designee shall be the lower of (i) the rental payable by Tenant to Landlord under this Lease or (ii) the rental payable by the proposed assignee or subtenant pursuant to the proposed assignment or subletting. 01. Landlord agrees that it shall respond to any request for consent to Tenant's proposed assignment or sublease within twenty (20) days after receipt of all information and documents relevant thereto and if Landlord shall fail to so respond within said thirty (30) days, Landlord shall be deemed to have consented to Tenant's proposed assignment, sublease or occupancy, provided that Tenant's request for consent contains a legend in bold typeface to the effect that Landlord's failure to respond within said thirty (30) days shall be deemed Landlord's consent. If Tenant fails to obtain a specific assignee or sublessee within said six (6) month period or fails to consummate any proposed assignment or subletting to which Landlord shall have consented within one hundred eighty (180) days after granting such consent, paragraph (a) shall again apply to said proposed assignment or subletting. If Landlord shall not ~~a publicly owned entity, certified to by a certified public accountant or financial officer~~ exercise any of the ~~proposed subtenant~~ options described in paragraph (a) above and Tenant shall thereupon assign this Lease or sublet all or any portion of the Demised Premises, then and in that event, Tenant shall pay to Landlord, as additional rent, fifty (50%) percent of the excess, if any, of the Fixed Rent plus additional rent paid by the assignee as or sublessee to Tenant over the Fixed Rent plus additional rent allocable to that part of ~~a date~~ the Demised Premises affected by such assignment or sublease pursuant to the provisions of this Lease, such excess, if any, to be reduced by the actual reasonable expenses incurred by Tenant in connection with such assignment or subletting, including, without limitation, brokerage commissions (if applicable) but not ~~more than twelve~~ in excess of one and one half commissions, the cost of physically separating the sublet area (12if applicable) ~~months prior thereto;~~ from the rest of the Demised Premises and other related construction expenses actually incurred in connection with preparing the space for occupancy by the sublessee, free rent and reasonable legal expenses. Such additional rent payments shall be made monthly within five (5) ~~an agreement~~ days after receipt of the same by Tenant. Fifty (50%) percent of any cash or other consideration payable to ~~indemnify, defend and hold Landlord harmless against any claim~~ Tenant in connection with such assignment or ~~liability for real estate brokerage commission payable with respect to any~~ sublease or ~~assignment~~ the sale of Tenant's property in connection therewith (less in the case of the sale thereof the fair market value of such personal property, as reasonably determined by Landlord), shall be similarly paid over to Landlord when and as received by Tenant. If Tenant fails to consummate any proposed assignment or subletting to which Landlord shall have consented within sixty (60) days after granting such consent, paragraph (a) shall again apply to said proposed assignment or subletting. No option exercised by Landlord pursuant to the provisions of paragraph (a), and no assignment or sublease made to Landlord under the provisions of paragraph (a), shall be binding upon any purchaser of any ground or underlying lease who acquires such ground or underlying lease by reason of the foreclosure of any mortgage to which this Lease is subordinate, nor upon any assignee of any ground or underlying lease who takes such assignment in lieu of such foreclosure, it being understood, however, that such purchaser or assignee may, at its option, elect to enforce such option, assignment or sublease. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed ~~assignment~~ sublease or ~~sublease~~assignment, including, without limitation, the following: (i) the financial stability ~~(given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation~~ and business ~~experience~~ reputation of the proposed assignee or ~~subtenant~~ subtenant; (ii) the nature of the business and the proposed use of the Demised Premises ~~(which~~ by the proposed ~~use, subject~~ assignee or subtenant in relation to ~~this subparagraph (b) and Section 10.02(e), may differ from~~ the ~~Authorized Use) subsequent to such subletting or assignment.~~majority of other tenants in the Building; (ciii) ~~If Xxxxxx believes that~~ the proposed assignee or subtenant shall not be a tenant of other space in the Building or a party which has dealt with Landlord ~~has unreasonably withheld its consent~~ or Landlord's agent (directly or through a broker) with respect to ~~a proposed subletting or assignment, Tenant may, within twenty~~ space in the Building during the six (206) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxxmonths immediately preceding Tenant's request for Landlord's ~~consent and~~consent, provided Landlord has comparable space in the Building for such ~~event, upon the date specified in Tenant's notice of its intention to assign this Lease~~ proposed assignee or ~~sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder.~~subtenant; (eiv) ~~No part~~ restrictions contained in leases of other tenants of the Building; (v) the effect that the proposed assignee's or subtenant's occupancy or use of the Demised Premises ~~may be used, assigned or sublet for~~ would have upon the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part operation and maintenance of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade Building and Landlord's investment therein; (~~containing~~ vi) not more than ~~four~~ two entities (4excluding, Tenant and any Related Entities (as hereinafter defined)) ~~electronic games). "Training or education facility" by definition~~ shall ~~include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or~~ occupy the Demised Premises at any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing lawstime. ~~(a)~~ Section 11.02. If this Lease ~~is assigned~~ shall be assigned, or if the Demised Premises is or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may after default by Tenant, ~~upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant or ~~occupant,~~ occupant and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions and covenants of this Lease. Section 11.03. Each assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the rent, additional rent and adjustments of rent, and for the due performance of all the ~~covenants~~ terms, covenants, conditions and agreements herein contained on ~~the~~ Tenant's part ~~of Tenant~~ to be performed ~~herein contained~~for the Term of this Lease. No assignment shall be binding on Landlord unless such assignee or Tenant shall deliver to Landlord a duplicate original of the instrument of assignment which contains a covenant of assumption by the assignee of all of the obligations aforesaid and shall obtain from Landlord the aforesaid written consent prior thereto. Section 11.04. For the purposes of this Lease, any sale, transfer or assignment of the majority stock of a corporate Tenant (bother than a sale of shares of a corporate tenant the shares of which are listed on a registered securities exchange or are regularly traded in the "over-the-counter market" provided such sale is effectuated on such exchange or in such market) or any transfer in the control of Tenant by operation of law or otherwise shall be deemed an assignment. Notwithstanding the foregoing, the sale, transfer or assignment of the majority of the stock of Tenant pursuant to a public or private offering or pursuant to any corporate restructuring shall not be deemed an assignment, provided that the same is not done to circumvent the prohibition contained herein. Section 11.05. The listing of any name other than that of Tenant, whether on the doors of the Demised Premises, on the Building directory or otherwise, shall not operate to vest any right or interest in this Lease or the Demised Premises. It is expressly understood that any such listing is a privilege extended by Landlord that is revocable at will by written notice to Tenant. Section 11.06. Tenant shall reimburse Landlord for any costs incurred by Landlord to review the requested consent provided in Article 11, including reasonable attorneys' fees. Section 11.07. If Landlord shall ~~for any reason or cause~~ recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right ~~at its option~~ to take over any ~~and all subleases or sublettings of the Demised Premises or any part or parts thereof~~ sublease made ~~or granted~~ by ~~Xxxxxx~~ Tenant and to succeed to all ~~the~~ rights ~~and privileges~~ of ~~said subleases and sublettings or such of them as it may elect to take over and assume; and~~ Tenant thereunder, Tenant hereby ~~expressly assigns and transfers to Landlord such~~ assigning (effective as of the date of Landlord's succession of Tenant's estate in the Demised Premises) such subleases ~~and sublettings~~ as Landlord may elect to take ~~over~~ over. Every subletting hereunder shall be subject to the condition that, from and ~~assume~~ after the termination of this Lease or re-entry by Landlord hereunder or other succession by Landlord to Tenant's estate in the Demised Premises, the subtenant shall waive any right to surrender possession or to terminate the sublease and, at Landlord's election, shall be bound to Landlord for the ~~time~~ balance of the term thereof and shall attorn to and recognize Landlord, as its landlord, under all of the then executory terms of such ~~recovery~~ sublease, except that Landlord shall not be (a) liable for any previous act, omission or negligence of ~~possession~~Tenant under such sublease, (b) subject to any counterclaim, defense or offset theretofore accruing to such subtenant against Tenant, (c) bound by any previous modification or amendment of such sublease made without Landlord's consent or by any previous prepayment of more than one month's rent and additional rent unless paid as provided in the sublease, or (d) obligated to perform any repairs or other work in the subleased space or the Building beyond Landlord's obligations under this Lease, and each subtenant shall execute and deliver such instruments as Landlord may reasonably request to evidence and confirm such attornment. Section 11.08. Notwithstanding anything to the contrary elsewhere contained herein (including Section 11.01(a) hereof and Landlord's rights thereunder to profit sharing), provided that Tenant shall not be in monetary default or material non-monetary default in any of the terms of this Lease beyond notice and the expiration of any applicable grace period, Tenant may, without Landlord's consent but upon ~~request~~ not less than ten (10) days' prior written notice to Landlord, sublet to, or allow occupancy by, any corporations or other business entities which control, are controlled by, or are under common control with Tenant (herein referred to as a "Related Entity") all or part of ~~Landlord execute~~the Demised Premises or permit any Related Entity to occupy the same for any of the purposes permitted to Tenant, ~~acknowledge and~~ subject however to compliance with Tenant's obligations under this Lease. Such subletting or occupancy shall not be deemed to vest in any such Related Entity any right or interest in this Lease nor shall such subletting or occupancy relieve, release, impair or discharge any of Tenant's obligations hereunder. Tenant shall deliver to Landlord a copy of any such ~~further assignments~~ sublease or occupancy agreement for all or any portion of the Demised Premises. Landlord hereby acknowledges and ~~transfers~~ agrees that the following Related Entities may occupy the Demised Premises but only for so long as ~~may be necessary~~such entities shall continue to remain Related Entities of Tenant: (i) Taxi Tops Inc. (d/b/a Medallion Taxi Media), ~~sufficient~~ (ii) Xxxxxxx Capital Corp., (iii) Transportation Capital Corp., (iv) Medallion Funding Corp., and ~~proper to vest in Landlord the then existing subleases and subletting~~(iv) Business Lenders LLC.

Appears in 1 contract

Samples: Lease Agreement (Medallion Financial Corp)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to ~~a single subtenant~~be occupied or used by others for desk space, ~~provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment~~ mailing privileges or ~~sublease, including~~otherwise, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's prior written consent ~~and,~~ in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning planteach instance. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised 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 not less than thirty (30) nor more than 180 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 Demised Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such space (hereinafter called the "Leaseback Space") from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or part of the Demised Premises), (ii) terminate this Lease if the proposed transaction is an assignment or a sublease (whether by one sublease or a series of related or unrelated sublease) of all of substantially all of the Demised Premises, or (iii) terminate this Lease with respect to the Leaseback Space (if the proposed transaction is a sublease of part of the Demised Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after such notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Section 11.03. If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet (whether by one sublease or a series of related or unrelated subleases) all or substantially all of the Demised Premises, then, this Lease shall ~~for~~ end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the minimum rent and additional rent shall be paid and apportioned to such date. Section 11.04. If Landlord exercises its option to terminate this Lease in part in any ~~reason or cause recover or come into possession~~ case where Tenant desires to sublet part of the Demised Premises, then, (a) this Lease shall end and expire with respect to such part of the Demised Premises ~~before~~ on the ~~Expiration Date~~date that the proposed sublease was to commence; and (b) from and after such date the minimum rent and additional rent shall be adjusted, ~~Landlord shall have~~ based upon the ~~right at its option to take over any and all subleases or sublettings~~ proportion that the rentable area of the Demised Premises ~~or any part or parts thereof made or granted by Xxxxxx and~~ remaining bears to ~~succeed to all~~ the ~~rights and privileges~~ total rentable area of ~~said subleases and sublettings or such of them as it may elect to take over and assume~~the Demised Premises; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.(

Appears in 1 contract

Samples: Lease (Global Technologies LTD)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to ~~a single subtenant~~be used by others, ~~provided that Xxxxxx has complied with~~ without Landlord's prior written consent in each instance, which consent shall not be unreasonably withheld or unduly delayed, subject to the provisions of ~~Paragraph A above~~Section 11.07. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised 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 not less than thirty (30) nor more than 180 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 Demised premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such space (hereinafter called the "Leaseback Space") from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or substantially all or part of the Demised Premises), (ii) terminate this Lease (if the proposed transaction is an assignment or a sublease of all of substantially all of the Demised Premises), or (iii) terminate this Lease with respect to the Leaseback Space (if the proposed transaction is a sublease of part of the Demised Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after such notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Section 11.03. If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all or substantially all of the Demised Premises, then, this Lease shall ~~for~~ end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the minimum rent and additional rent shall be paid and apportioned to such date. Section 11.04. If Landlord exercises its option to terminate this Lease in part in any ~~reason or cause recover or come into possession~~ case where Tenant desires to sublet part of the Demised Premises, then, (a) this Lease shall end and expire with respect to such part of the Demised Premises ~~before~~ on the ~~Expiration Date~~date that the proposed sublease was to commence; and (b) from and after such date the minimum rent and additional rent shall be adjusted, ~~Landlord shall have~~ based upon the ~~right at its option to take over any and all subleases or sublettings~~ proportion that the rentable area of the Demised Premises ~~or any part or parts thereof made or granted by Xxxxxx and~~ remaining bears to ~~succeed to all~~ the ~~rights and privileges~~ total rentable area of ~~said subleases and sublettings or such of them as it may elect to take over and assume~~the Demised Premises; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.(

Appears in 1 contract

Samples: Lease (Ultrafem Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, includingbe used by others, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's prior written consent ~~and,~~ in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning planteach instance. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised 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 not less than thirty (30) nor more than 180 days after the giving of such notice, (b) If 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 Demised Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord ~~shall for any reason~~ whereby Landlord (or ~~cause recover~~ Landlord's designee) may, at its option, (i) terminate this Lease if the proposed transaction is an assignment or ~~come into possession~~ a sublease (whether by one sublease or a series of related or unrelated subleases) of all of substantially all of the Demised Premises ~~before~~ for the ~~Expiration Date~~balance of the term, ~~Landlord shall have~~ or (ii) terminate this Lease with respect to the ~~right at its option to take over any and all subleases or sublettings~~ space being sublet (if the proposed transaction is a sublease of part of the Demised Premises or for the balance of the term). Said options may be exercised by Landlord by notice to Tenant at any ~~part or parts thereof made or granted~~ time within thirty (30) days after such notice has been given by ~~Xxxxxx and~~ Tenant to ~~succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume~~Landlord; and during such thirty (30) day period Tenant ~~hereby expressly assigns and transfers~~ shall not assign this Lease nor sublet such space to any person. Section 11.03. If Landlord ~~such~~ exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet (whether by one sublease or a series of related or unrelated subleases) all or substantially all of the ~~subleases~~ Demised Premises for the balance of the term, then, this Lease shall end and ~~sublettings~~ expire on the date that such assignment or sublet was to be effective or commence, as ~~Landlord~~ the case may ~~elect to take over and assume at the time of such recovery of possession~~be, and the minimum rent and additional rent shall be paid and apportioned to such date. Section 11.04. If Landlord exercises its option to terminate this Lease in part in any case where Tenant desires to sublet part of the Demised Premises for the balance of the term, then, (a) this Lease shall end and expire with respect to such part of the Demised Premises on the date that the proposed sublease was to commence; and (b) from and after such date the minimum rent and additional rent shall be adjusted, based upon ~~request~~ the proportion that the rentable area of ~~Landlord execute, acknowledge~~ the Demised Premises remaining bears to the total rentable area of the Demised Premises; and ~~deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.~~(

Appears in 1 contract

Samples: Lease (Constellation 3d Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, includingbe used by others, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's prior written consent ~~and,~~ in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning planteach instance. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised 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 not less than thirty (30) nor more than 180 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 Demised Premises, and (c) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such space (hereinafter called the "Leaseback Space") from Tenant upon the terms and conditions hereinafter set forth (if the proposed transaction is a sublease of all or substantially all or part of the Demised Premises), (ii) terminate this Lease (if the proposed transaction is an assignment or a sublease of all of substantially all of the Demised Premises), or (iii) terminate this Lease with respect to the Leaseback Space (if the proposed transaction is a sublease of part of the Demised Premises). Said options may be exercised by Landlord by notice to Tenant at any time within thirty (30) days after such notice has been given by Tenant to Landlord; and during such thirty (30) day period Tenant shall not assign this Lease nor sublet such space to any person. Section 11.03. If Landlord exercises its option to terminate this Lease in the case where Tenant desires either to assign this Lease or sublet all or substantially all of the Demised Premises, then, this Lease shall ~~for~~ end and expire on the date that such assignment or sublet was to be effective or commence, as the case may be, and the minimum rent and additional rent shall be paid and apportioned to such date. Section 11.04. If Landlord exercises its option to terminate this Lease in part in any ~~reason or cause recover or come into possession~~ case where Tenant desires to sublet part of the Demised Premises, then, (a) this Lease shall end and expire with respect to such part of the Demised Premises ~~before~~ on the ~~Expiration Date~~date that the proposed sublease was to commence; and (b) from and after such date the minimum rent and additional rent shall be adjusted, ~~Landlord shall have~~ based upon the ~~right at its option to take over any and all subleases or sublettings~~ proportion that the rentable area of the Demised Premises ~~or any part or parts thereof made or granted by Xxxxxx and~~ remaining bears to ~~succeed to all~~ the ~~rights and privileges~~ total rentable area of ~~said subleases and sublettings or such of them as it may elect to take over and assume~~the Demised Premises; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.(

Appears in 1 contract

Samples: Lease Agreement (Infosafe Systems Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ (a) Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred,~~ not by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, mortgage or encumber this Lease, nor sublet or permit the demised premises or any part thereof ~~will~~ to be used by others, without Landlord's prior express written consent in each instance. The consent by Landlord to any assignment or subletting shall not in any manner be construed to relieve Tenant from obtaining Landlord's express written consent to any other or further assignment or subletting nor shall any such consent by Landlord serve to relieve or release Tenant from its obligations to fully and faithfully observe and perform all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed. (b) If Tenant shall desire to assign or to sublet all or ~~advertised for~~ any portion of the demised premises, Tenant shall give notice thereof to Landlord and in said notice shall set forth all pertinent business terms of the proposed assignment or subletting as well as the name and address of the proposed assignee or ~~occupied by anyone~~ sublessee, information as to financial condition of such assignee or sublessee, the nature and character of the business and credit of such assignee or sublessee, and proposed use which the assignee or sublesse desires to make of the demised premises. Said notice shall bear the signature of the proposed sublessee or assignee attesting to its accuracy. Tenant shall in addition, at Landlord's reasonable request, furnish such other ~~than~~ further information as Landlord may request concerning such proposed assignment or subletting. After receipt of such notice from Tenant, Landlord shall have the following options to be exercised within sixty (60) days from the later to occur of (1) the receipt of Tenant's notice, or (2) if Landlord shall request additional information from Tenant, the receipt of such additional information when furnished by Tenant: (i) In the event Tenant's notice is of Tenant's desire to make an assignment or a subletting of all or substantially all of the demised premises Landlord shall have the option to cancel and terminate this Lease as the date proposed by Tenant for such assignment or subletting, which options shall be exercised within the aforesaid sixty (60) day period and on which date the term of this Lease shall cease and expire with the same force and effect as if such date were originally provided herein as the expiration of the term hereof. (ii) In the event Tenant's notice is of Tenant's desire to make a subletting for less than all or substantially all of the demised premises, Landlord shall have the option, to be exercised within said sixty (60) day period, of canceling and terminating this Lease only as to such portion of the demised premises to take effect as of the proposed effective date thereof as stated in Tenant's notice. In the event Landlord exercises its option under this subparagraph (ii) the rent and all other charges payable hereunder shall be equitably adjusted and apportioned. (c) Landlord shall have the further option, to be exercised within thirty (30) business days from submission of Tenant's request, to require Tenant to execute an assignment or sublease to Landlord or Landlord's designee on the same terms and conditions in Landlord's own name, or the name of Landlord's designee, with a right to sublease to others without Tenant's consent being required for such or any ~~purpose other than as hereinafter~~ further sublettings. If Landlord shall not exercise its foregoing further option within the time set forth, ~~without the prior written~~ its consent ~~of Landlord~~to any such proposed assignment or subletting shall not be unreasonably withheld or unduly delayed, ~~given or withheld as hereinafter~~ provided, however, that Landlord may withhold consent thereto if in ~~every case except as expressly provided in this Section. Any transfer by operation~~ the exercise of ~~law or otherwise of~~ its reasonable judgment it determines that: (i) ~~Tenant's interest in this Lease,~~ The financial condition and general reputation of the proposed assignee or subtenant are not consistent with the extent of the obligation undertaken by the proposed assignment or sublease. (ii) ~~50%~~ The proposed use of the demised premises under the proposed assignment or ~~more interest~~ sublease is not (a) appropriate for the Building and/or the floor(s) of the Building on which the demised premises are located or (b) in ~~Tenant~~ keeping with the character of the existing tenancies in the Building and/or the floor(s) of the Building on which the demised premises are located or (~~whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment~~ c) permitted under the terms of this Lease ~~for purposes~~ including but not limited to the use of the demised premises permitted under Article 2 of this ~~Article~~Lease. (aiii) The nature of the occupancy of the proposed assignee or subtenant will cause an excessive density of employees or traffic or make excessive demands on the Buildings services or facilities or in any way lessen the character of the Building. (iv) The Tenant proposes to assign or sublet to a party that at the time is a tenant or occupant of premises in the Building of which the demised premises are a part (or to a subsidiary or related entity of such a tenant or occupant) or to a party who has dealt with Landlord or Landlord's agent (directly or through a broker) with respect to space in the Building during the preceding twelve (12) month period, or to one who at the time is a tenant or occupant of premises in any other building then managed by Landlord's managing agent, presently Cammeby's Management Company LLC. (v) Tenant proposes to assign or sublet all or a portion of the demised premises at a rental rate less than the rental rate Landlord is then asking for other space in the Building or less than the then market rental rate. In the event Landlord should withhold or delay its consent to any proposed assignment or sublease, the sole remedy of Tenant shall be to institute action for specific performance if Tenant believes that such withholding or delaying of consent was unreasonable and Tenant hereby expressly waives any claim for monetary damages by reason of such withholding or delaying of consent by Landlord. (d) Further, and as a condition of Landlord's consent to any assignment of subletting: 1. Tenant at the time of requesting Landlord's consent shall not be in default in the payment of any rent, additional rent, or other sums or charges provided to be paid by Tenant hereunder and further that Tenant is not then in material default otherwise under this Lease; 2. That each assignee of this Lease shall assume in writing all of the terms, covenants and conditions of this Lease on the part of Tenant hereunder to be performed and observed. 3. That an original or duplicate original of the instrument of assignment and assumption or the sublease agreement shall be delivered to Landlord within five (5) days following the making thereof; and 4. than any instrument of sublease shall specifically state that each sublease is subject to all of the terms, covenants and conditions of this Lease. If Tenant ~~desires~~ shall duly comply with all of the foregoing then, as aforesaid, Landlord shall not unreasonably withhold or unduly delay its consent to such assignment or subletting, provided further, however, and on condition that at the time of requesting Landlord's consent Tenant shall pay to Landlord the sum of $1,000.00 as a processing fee for each assignment and/or subletting. (e) It is agreed that if Landlord shall not exercise any of its foregoing options and shall consent to such assignment or subletting, and Tenant shall thereupon assign this Lease or sublet all or any portion of the ~~Demised Premises~~demised premises, then and in that event Tenant shall ~~deliver~~ pay to ~~Landlord~~ Landlord, as additional rent, (i) in ~~writing (1)~~ the ~~name~~ event of an assignment, the amount of monies, if any, which the assignee has agreed to and does pay to Tenant in consideration of the ~~proposed assignee or subtenant; (2) a duly executed counterpart~~ making of such assignment less however all out of pocket costs actually incurred by Tenant in connection with the ~~term sheet or~~ making of such ~~other written agreement which includes all of the terms~~ assignment, including but not limited to any brokerage fees, advertising and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior theretoalteration costs; and (5ii) ~~an agreement~~ in the vent of a subletting, (x) the amount, if any, by which the fixed basic rent and additional rent payable by the sublessee to ~~indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect~~ Tenant shall exceed the fixed basic rent plus additional rent allocable to ~~any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting~~ that part of the ~~whole (but not part) of the Demised Premises~~ demised premises affected by such sublessee pursuant to ~~a single subtenant, provided that Xxxxxx has complied with~~ the provisions of ~~Paragraph A above. In determining reasonableness~~this Lease, ~~Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability~~ plus (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (iy) the ~~list of arbitrators referred~~ amounts, if any, payable by such sublessee to ~~in paragraph~~ Tenant pursuant to any side agreement as consideration (bpartial or otherwise) ~~of Rule 57~~ for Tenant making such subletting. Such additional rent payments shall be ~~returned to the AAA~~ made monthly within five (5) ~~business~~ days after ~~submission~~ receipt of the ~~list;~~ same by Tenant or within five (ii5) ~~Landlord and~~ days after Tenant is credited with the same by the assignee or sublessee. At the time of submitting the proposed assignment or sublease to Landlord, Tenant shall ~~notify~~ certify to Landlord in writing whether or not the ~~AAA within four (4) business days after an arbitrator is appointed of~~ assignee or sublessee has agreed to pay any ~~objections they may have thereto and shall have no right~~ monies to ~~object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made~~ Tenant in ~~connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance~~ consideration of the ~~hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment~~ making of the ~~arbitrator. In the event that Tenant prevails against Landlord~~ assignment or sublease other than as specified and set forth in ~~an expedited arbitration brought pursuant to this Section 10.02(c)~~such instruments, ~~Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by~~ and if so Tenant shall ~~be to consent thereto~~ certify the amounts and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment time of ~~the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained~~ payment thereof in ~~such later version~~reasonable detail. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (af) If this Lease ~~is assigned~~ shall be assigned, or if the ~~Demised Premises is~~ demised premises or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may, ~~upon the occurrence of an Event of Default and~~ after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant or ~~occupant,~~ occupant and apply the net amount collected (which may be treated by Landlord as rent or as use and occupancy) to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided,~~ reserved but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions and covenants of this Lease. (g) Each permitted assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the rent, additional rent and adjustment of rent, and for the due performance of all the ~~covenants~~ terms, covenants, conditions and agreements herein contained on ~~the~~ Tenant's part ~~of Tenant~~ to be performed ~~herein contained~~for the term of this Lease and any renewals and modifications hereof. No assignment shall be binding on Landlord unless, as hereinbefore provided, such assignee or Tenant shall deliver to Landlord a duplicate original of the instrument of assignment which contains a covenant of assumption by the assignee of all of the obligations aforesaid and shall obtain from Landlord the aforesaid written consent prior thereto. Any assignment, sublease or agreement permitting the use and occupancy of the premises to which Landlord shall not have expressly consented in writing shall be deemed null and void and of no force and effect. (bh) ~~If Landlord shall for any reason~~ Any sale, transfer or ~~cause recover or come into possession~~ assignment of a majority of the ~~Demised Premises before the Expiration Date, Landlord~~ issued and outstanding stock of a corporate tenant shall ~~have the right at its option to take over any and all subleases or sublettings~~ be deemed an assignment of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.this lease. PLEASE INITIAL [ ] [x] LANDLORD TENANT

Appears in 1 contract

Samples: Office Lease (Hanover Capital Mortgage Holdings Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. Section ~~10.01~~11.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~not, by operation of law or otherwise, ~~and that neither the Demised Premises~~assign, ~~nor any part thereof will be sublet~~ mortgage or advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth, without the prior written consent of Landlord, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in encumber this Lease, or ~~(ii) 50%~~ sublet or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; (2) a duly executed counterpart of the term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of permit the Demised Premises or any part thereof to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment be occupied or ~~sublease, including~~used by others for desk space or mailing privileges, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's prior written consent ~~and,~~ in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning planteach instance. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease ~~is assigned~~ be assigned, or if the Demised Premises ~~is sublet~~ or any part thereof be underlet or occupied by ~~anyone~~ anybody other than Tenant, Landlord, ~~upon the occurrence of an Event of Default and~~ may, after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ undertenant or occupant, and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no ~~such~~ assignment, ~~subletting~~underletting, occupancy or collection shall be deemed a waiver of ~~any covenant by Tenant under this Article 10~~the provisions hereof, ~~nor shall the same be deemed~~ the acceptance of the assignee, ~~sublessee~~ undertenant or occupant as a tenant, or a release of Tenant from the further performance by Tenant of ~~the~~ covenants ~~and agreements~~ on the part of Tenant herein contained. The consent by Landlord to any assignment, subletting, mortgage or encumbrance shall not in any manner be construed to relieve Tenant from obtaining Landlord's express consent to any other or further assignment, subletting, mortgage or encumbrance. In no event shall any permitted sublessee assign or encumber its sublease or further sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or any part thereof to be ~~performed herein contained~~used or occupied by others, without Landlord's prior written consent in each instance. Section 11.02. If Tenant shall at any time or times during the term of this Lease desire to assign this Lease or sublet all or part of the Demised Premises, Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (a) a conformed or photostatic executed copy of the proposed assignment or sublease, together with an abstract of the material terms of the assignment or sublease, the effective or commencement date of which shall be not less than thirty (30) nor more than one hundred eighty (180) days after the giving of such notice, (b) ~~If Landlord shall for any reason~~ a statement setting forth in reasonable detail the identity of the proposed assignee or ~~cause recover or come into possession~~ subtenant, the nature of its business and its proposed use of the Demised ~~Premises before~~ Premises, (c) a statement in sufficient detail satisfactory to Landlord, setting forth the ~~Expiration Date~~calculations of the sums to be payable to Landlord pursuant to the provisions of Section 11.10, and (d) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial report. Such notice shall be deemed an offer from Tenant to Landlord ~~shall have~~ whereby Landlord may, at its option, terminate this Lease if the ~~right at~~ proposed transaction is an assignment or a sublease (whether by one sublease or a series of related or unrelated subleases) of all or substantially all of the Demised Premises. Section 11.03. If Landlord exercises its option to ~~take over any and~~ terminate this Lease in the case where Tenant desires either to assign this Lease or sublet (whether by one sublease or a series of related or unrelated subleases) all ~~subleases~~ or ~~sublettings~~ substantially all of the Demised ~~Premises~~ Premises, then this Lease shall end and expire on the date that such assignment or ~~any part~~ sublet was to be effective or ~~parts thereof made or granted by Xxxxxx and to succeed to all~~ commence, as the ~~rights and privileges of said subleases and sublettings or such of them as it~~ case may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possessionbe, and ~~Tenant~~ the minimum rent and additional rent shall ~~upon request of Landlord execute, acknowledge~~ be paid and ~~deliver~~ apportioned to ~~Landlord~~ such ~~further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting~~date. Section 11.04. Intentionally Deleted. Section 11.05. Intentionally Deleted.

Appears in 1 contract

Samples: Lease Agreement (Jesup & Lamont, Inc.)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01. Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither~~ SECTION 17.01 Neither this Lease nor the term and estate hereby granted, nor any ------------- part hereof or thereof, will be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred, by operation of law or otherwise, and that neither the Demised Premises, nor any part thereof will may be sublet or ~~advertised for subletting or occupied by anyone other than Tenant, or for any purpose other than as hereinafter set forth~~assigned, without ~~the prior~~ Landlord's written ~~consent of Landlord, given~~ consent. SECTION 17.02 No assignment or ~~withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer~~ sublease consented to by operation of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, Landlord shall be ~~deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease~~ valid ------------- and enforceable unless the assignee or ~~sublet~~ subTenant shall have assumed all of the ~~Demised Premises~~liabilities hereunder of the assignor or subLandlord, and the assignor shall have expressly agreed to continue to remain jointly and severally liable as Tenant hereunder. The assumption and agreement shall be set forth in a written instrument complying with the provisions not in compliance with these terms shall be voidable by Landlord. SECTION 17.03 Each permitted assignee or subTenant shall assume and be deemed to ------------- have assumed this Lease and shall be and remain liable jointly and severally with Tenant, for the payment of the rent, additional rent and adjustments of rent, and the due performance of and compliance with all the terms, covenants, conditions and agreements herein contained on Tenant's part to be performed or complied with for the term of this Lease. No assignment or sublease shall be binding on Landlord unless such assignee or subTenant shall deliver to Landlord ~~in writing (1) the name~~ a duplicate original of the ~~proposed~~ instrument of assignment or sublease which contains a covenant of assumption by the assignee or ~~subtenant; (2) a duly executed counterpart~~ subTenant of ~~the term sheet or such other written agreement which includes~~ all of the terms and conditions of the proposed assignment or subletting; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenantobligations aforesaid. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease, including, without limitation, the financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability, to the extent applicable) reputation and business experience of the proposed assignee or subtenant and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease is assigned or if the Demised Premises is sublet or occupied by anyone other than Tenant, Landlord, upon the occurrence of an Event of Default and Tenant's failure to cure following applicable notice, may collect Fixed Rent, additional rent and other charges from the assignee, sublessee or occupant, and apply the net amount collected to the Fixed Rent, additional rent and other charges herein provided, but unless Landlord in its sole discretion otherwise elects, no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant by Tenant under this Article 10, nor shall the same be deemed the acceptance of the assignee, sublessee or occupant as a tenant, or a release of Tenant from the further performance of the covenants and agreements on the part of Tenant to be performed herein contained. (b) If Landlord shall for any reason or cause recover or come into possession of the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.

Appears in 1 contract

Samples: Lease Agreement (Community Partners Bancorp)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01~~12.01. Except as specifically permitted by this Article, Tenant ~~covenants and agrees~~shall not by operation of law or otherwise, ~~for Tenant and Xxxxxx's heirs~~assign, ~~distributees, executors, administrators, legal representatives, successors, and assigns, that neither~~ mortgage or encumber this ~~Lease nor the term and estate hereby granted~~Lease, nor sublet or permit the Demised Premises or any part ~~hereof~~ thereof to be used by others, without Landlord’s prior written consent in each instance. An assignment or ~~thereof~~sublease, ~~will~~ within the meaning of this Article 12, shall be ~~assigned~~deemed to include one or more sales or transfers, direct or ~~advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred~~indirect, by operation of law or otherwise, or creation of new stock, by which an aggregate of more than 50% of Tenant’s or a sublessee’s stock shall be vested in a party or parties who are non-stockholders as of the date hereof or as of the date of subletting, as the case may be; or the transfer of the majority of the total equity interest of the partners of any partnership tenant or subtenant however any of the foregoing is accomplished, whether by a single transaction or series of related or unrelated transactions. The consent by Landlord to any assignment or subletting shall not in any manner be construed to relieve Tenant from obtaining Landlord’s express written consent to any other or further assignment or subletting by Tenant or by any assignee or subtenant of Tenant, subject to and in accordance with the provisions of this Article 12. 12.02. If Tenant shall determine that ~~neither~~ it desires to sublet all or any part of the Demised Premises, Tenant shall notify Landlord of Tenant’s desire to do so (any such notice being hereinafter called an “Offer Notice”) specifying the space, the rent, the term for which Tenant desires to sublet and the terms and conditions on which Tenant proposes to sublet such space. Upon receipt of an Offer Notice, Landlord shall have the option, exercisable by Landlord in writing within thirty (30) days after receipt of such Offer Notice, to underlet from Tenant the space which Tenant so desires to sublet, for the term for which Tenant desires to sublet it, for a rent equal to the lower of: (i) the rent for which Tenant proposes to sublet such space, or (ii) the rent which Tenant by the terms of this Lease is required to pay for the rentable area of the space so to be underlet, such underlease to be upon the covenants, agreements, terms, provisions and conditions contained in this Lease except as hereinafter provided and except for such thereof which are irrelevant or inapplicable and, without limiting the generality of the foregoing, it is hereby expressly agreed that (a) Such underlease to Landlord shall give the undertenant the unqualified and unrestricted right, without Tenant’s permission, (x) to assign such underlease or any interest therein and/or to underlet the space covered by such underlease or any parts of such space for any purpose or purposes that the undertenant, in the undertenant’s discretion reasonably exercised, shall deem suitable or appropriate, except that Landlord agrees that any such underlease will not be assigned except simultaneously with an assignment of Landlord’s interest under this Lease so that at all times the Landlord under this Lease and the undertenant under said underlease shall be the same person, corporation or other entity, and each assignor of such underlease shall thereafter be released of all obligations under such underlease, and (y) to make any and all changes, alterations and improvements in the space covered by such underlease deemed desirable by the undertenant; (b) Such underlease shall provide that (x) anyassignee or subtenant of the undertenant may, at the election of the undertenant, be permitted to make alterations, decorations and installations in such space or any part thereof, and (y) any such alterations, decorations and installations therein made by any assignee or subtenant of the undertenant may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such underlease provided that such assignee or subtenant, at its expense, shall repair the damage and injury to such space so underlet caused by such removal; (c) Such underlease shall also provide that the parties to such underlease expressly negate any intention that any estate created under such underlease be merged with any other estate held by either of said parties, but Landlord, in the event it underleases or sublets the space covered thereby, shall nevertheless remain liable to Tenant for all rent due under such underlease. Tenant shall have the right to set off against any rent or charges due by Tenant under this Lease any amount owed Tenant under such underlease. Without limiting Tenant’s right of set-off as above provided, Landlord shall have no affirmative obligation to pay rent under such underlease at any time that Tenant is in default in payment of amounts due Landlord under this Lease; (d) Tenant shall and will at all times at its expense provide and permit an appropriate means of ingress and egress from such space so underlet by Tenant to Landlord, such means of ingress or egress to be specified by Tenant in the Offer Notice with respect to such space; (e) The occupant or occupants of all or any part or parts of such space shall, in common with Tenant, have the use of toilet facilities and other core facilities on the floor on which such space is located; (f) At the expiration of such underlease, Tenant shall accept the space covered thereby in its then existing condition, provided that Landlord shall have performed Landlord’s obligations to keep and maintain such space in good order and condition except for ordinary wear and tear; (g) No default by Landlord under such underlease or by anyone claiming through such underlease shall be deemed to constitute a default under this Lease; and (h) In the case of an underlease for the balance of the term of this Lease, this Lease shall be deemed to have been cancelled and terminated with respect to the space covered by said underlease and the fixed rent under this Lease and the rentable area of the Demised Premises shall be appropriately reduced as of the effective date of such underlease. In addition, if the space covered by said Offer Notice is for substantially all of the Demised Premises, and the term of the proposed sublet is for substantially all of the remainder of the term of this Lease, Landlord shall have the additional option, exercisable by Landlord in writing within thirty (30) days after receipt of such Offer Notice, to cancel this Lease effective as of the proposed effective date of such subletting. 12.03. If Landlord does not exercise either of the options granted to Landlord by Section 12.02 with respect to a particular space, then for a period of six (6) months after Landlord’s rejection of the Offer Notice (whether by actual rejection or the expiration of the thirty-day period referred to in Section 12.02), Landlord agrees that Landlord will not unreasonably withhold or delay consent to the subletting of such space by Tenant provided that the following further conditions shall be met: (a) The proposed rent (including additional rent and other allowances) payable by the proposed subtenant shall not be more advantageous to the proposed subtenant nor shall the other terms of the subletting be substantially different from those set forth in the Offer Notice; (b) The Demised Premises shall not, without Landlord’s prior consent, have been listed or otherwise publicly advertised for subletting at a rental rate less than the rental rate being demanded by Landlord for comparable space in the Building. The foregoing, however, shall not be deemed to prohibit Tenant from negotiating or consummating a sublease at a lower rental rate, provided that such rental rate is not lower than the rental rate set forth in the Offer Notice; (c) Tenant shall not then be in default hereunder before the time herein provided, if any, to cure such default; (d) The proposed subtenant shall have a financial standing, be of a character, be engaged in a business, and propose to use the Demised Premises in a manner, in keeping with the standards in such respect of the other tenancies in the Building; (e) If Landlord shall have (or will have on or about the time of the projected commencement of the proposed sublease) suitable space available in the Building the proposed subtenant shall not then be a tenant, subtenant or assignee of any space in the Building, nor shall the proposed sublessee be a person or entity with whom Landlord is then negotiating to lease space in the Building; (f) The proposed subtenant shall not occupy and use the Demised Premises for purposes prohibited under Section 9.04; (g) The character of the business to be conducted or the proposed use of the Demised Premises by the proposed subtenant shall not (i) be likely to 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; (ii) increase the burden on existing cleaning services or elevators over the burden prior to such proposed subletting; or (iii) violate or be likely to violate any provisions or restrictions herein relating to the use or occupancy of the Demised Premises; (h) Any proposed sublease shall state that it is expressly subject to all of the obligations of Tenant under this Lease and the further condition and restriction that the sublease shall not be assigned, encumbered or otherwise transferred or the subleased premises further sublet by the sublessee in whole or in part, or any part thereof ~~will~~ suffered or permitted by the sublessee to be ~~sublet or advertised for subletting~~ used or occupied by ~~anyone other than Tenant, or for any purpose other than as hereinafter set forth~~others, without the prior written consent of ~~Landlord, given or withheld~~ Landlord in each instance as ~~hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of~~ set forth herein; (i) ~~Tenant's interest in this Lease, or (ii) 50% or~~ In no event shall there be more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment of this Lease for purposes of this Article. (a) If Tenant desires to assign this Lease or sublet all of the Demised Premises, Tenant shall deliver to Landlord in writing (1) the name of the proposed assignee or subtenant; than two (2) ~~a duly executed counterpart~~ occupants (including Tenant) on any floor of the ~~term sheet or such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting~~Building; (3) the nature and character of the experience of the principals of the proposed assignee or subtenant and any other information reasonably requested by Landlord; (4) a financial statement of the proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant.and (bj) ~~Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided~~ Tenant shall reimburse Landlord on demand for any reasonable costs that ~~Xxxxxx has complied~~ may be incurred by Landlord in connection with ~~the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or~~ said sublease, including, without limitation, the ~~financial stability (given the obligations hereunder and the fact that Xxxxxx has not been released from liability,~~ costs of making investigations as to the ~~extent applicable) reputation and business experience~~ acceptability of the proposed ~~assignee or subtenant~~ subtenant, and the proposed use of the Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment. (c) If Xxxxxx believes that Landlord has unreasonably withheld its consent with respect to a proposed subletting or assignment, Tenant may, within twenty (20) days after receiving notice that Landlord has withheld its consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's consent was withheld unreasonably to expedited arbitration in accordance with the expedited procedures of the American Arbitration Association ("AAA") Rules for the Real Estate Industry (the "Rules") except that: (i) the list of arbitrators referred to in paragraph (b) of Rule 57 shall be returned to the AAA within five (5) business days after submission of the list; (ii) Landlord and Tenant shall notify the AAA within four (4) business days after an arbitrator is appointed of any objections they may have thereto and shall have no right to object to an arbitrator whose name was on the list submitted by the AAA and as to whom no objection was made reasonable legal costs incurred in connection with ~~Rule 57; (iii) to~~ the ~~extent acceptable to the arbitrator, the notice~~ granting of hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held within seven (7) business days after the appointment of the arbitrator. In the event that Tenant prevails against Landlord in an expedited arbitration brought pursuant to this Section 10.02(c), Xxxxxxxx's sole liability to Tenant for its refusal to consent to an assignment proposed by Tenant shall be to consent thereto and Tenant hereby waives and relinquishes any and all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment of the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later versionrequested consent. (d) Landlord may, in its sole discretion, in lieu of consenting to a proposed subletting or assignment, elect to cancel and terminate this Lease by delivering to Tenant within ten (10) business days following Xxxxxx's request for Landlord's consent and, in such event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable, and the Term shall come to an end and expire as fully as if the date specified in such notice was the Expiration Date hereunder. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant12.04. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (a) If this Lease is shall be assigned or if the Demised Premises is or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may, ~~upon the occurrence of an Event of Default and~~ after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant or ~~occupant,~~ occupant and apply the net amount collected to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided~~reserved, but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions and covenants of this Lease. 12.05. Each permitted assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of fixed rent, additional rent and adjustments of rent, and for the due performance of all the ~~covenants~~ terms, covenants, conditions and agreements herein contained on ~~the~~ Tenant’s part ~~of Tenant~~ to be performed ~~herein contained~~for the term of this Lease. No assignment shall be binding on Landlord unless such assignee or Tenant shall deliver to Landlord a duplicate original of the instrument of assignment which contains a covenant of assumption by the assignee of all of the obligations aforesaid and shall obtain Landlord’s prior written consent pursuant to Section 13.01. ~~(b)~~ 12.06. If ~~Landlord~~ Tenant shall ~~for~~ sublet all or any ~~reason or cause recover or come into possession~~ portion of the Demised ~~Premises before~~ Premises, and if the ~~Expiration Date~~rent plus any other consideration received by Tenant with respect to such subletting shall, as respects any portion of the sublease term, exceed the rent payable under this Lease with respect to such portion of the sublease term (such excess, after deduction of all reasonable out-of-pocket expenses actually incurred in connection with the subletting, including, without limitation, costs of alterations, brokerage commissions, legal fees and advertising expenses, being hereinafter referred to as “Sublease Profit”), Tenant shall pay over fifty (50%) percent of such Sublease Profit to Landlord ~~shall have~~ as additional rent under this Lease, monthly as such Sublease Profit is received by Tenant. 12.07. Notwithstanding anything in this Lease to the ~~right at its option to take over~~ contrary, Tenant may, without Landlord’s prior consent, sublet all or any ~~and all subleases or sublettings~~ portion of the Demised Premises or assign this Lease to one or more related corporations of Tenant or permit one or more related corporations of Tenant or any company into which Tenant shall merge, with which Tenant shall consolidate or which shall acquire substantially all of Tenant’s assets and business operations, or to a corporation wholly owned by Tenant to use and/or occupy all or any part of the Demised Premises; provided, however, that in the case of any of the foregoing, the surviving entity which shall then constitute Tenant shall have gross assets and net worth in amounts equal to or ~~parts thereof made or granted by Xxxxxx~~ greater than the gross assets and net worth of Tenant prior to ~~succeed to all the rights and privileges of~~ said ~~subleases and sublettings or such of them as it may elect to take over and assume~~event; and provided further, that if any related corporation of Tenant ~~hereby expressly assigns and transfers~~ ceases, at any time, to ~~Landlord such of the subleases and sublettings as Landlord may elect~~ be related to ~~take over and assume at the time of such recovery of possession~~Tenant, ~~and~~ Tenant shall ~~upon request~~ cause such corporation to vacate the Demised Premises within 30 days. The provisions of ~~Landlord execute, acknowledge~~ Section 12.02 and ~~deliver~~ Section 12.06 shall not apply to ~~Landlord such further assignments and transfers as may be necessary, sufficient and proper~~ a sublease to ~~vest in Landlord the then existing subleases and subletting~~a related corporation of Tenant.

Appears in 1 contract

Samples: Lease (Langer Inc)

ASSIGNMENT, SUBLETTING, MORTGAGING. ~~Section 10.01.~~ (a) Tenant covenants and agrees, for Tenant and Xxxxxx's heirs, distributees, executors, administrators, legal representatives, successors, and assigns, that neither this Lease nor the term and estate hereby granted, nor any part hereof or thereof, will ~~be assigned, or advertised for assignment, mortgaged, pledged, encumbered or otherwise transferred,~~ not by operation of law or otherwise, ~~and that neither~~ assign, mortgage or encumber this Lease, not sublet or permit the ~~Demised Premises, nor~~ demised premises or any part thereof ~~will~~ to be ~~sublet or advertised for subletting or occupied~~ used by ~~anyone other than Tenant, or for any purpose other than as hereinafter set forth~~others, without ~~the~~ Landlord's prior express written consent in each instance. The consent by Landlord to any assignment or subletting shall not in any manner be construed to relieve Tenant from obtaining Landlord's express written consent to any other or further assignment or subletting nor shall any such consent by Landlord serve to relieve or release Tenant from its obligations to fully and faithfully observe and perform all of ~~Landlord~~the terms, given or withheld as hereinafter provided, in every case except as expressly provided in this Section. Any transfer by operation of law or otherwise of (i) Tenant's interest in this Lease, or (ii) 50% or more interest in Tenant (whether by way of stock, limited and/or general partnership interest or otherwise), in a single transaction or a related or unrelated series of transactions, shall be deemed an assignment covenants and conditions of this Lease ~~for purposes of this Article~~on Tenant's part to be observed and performed. (ab) If Tenant ~~desires~~ shall desire to assign ~~this Lease~~ or to sublet all or any portion of the ~~Demised Premises~~demised premises, Tenant shall ~~deliver~~ give notice thereof to Landlord and in ~~writing (1)~~ said notice shall set forth all pertinent business terms of the proposed assignment or subletting as well as the name and address of the proposed assignee or ~~subtenant; (2) a duly executed counterpart~~ sublessee, information as to financial condition of ~~the term sheet~~ such assignee or ~~such other written agreement which includes all of the terms and conditions of the proposed assignment or subletting; (3)~~ sublessee, the nature and character of the ~~experience~~ business and credit of such assignee or sublessee, and proposed use which the assignee or sublessee desires to make of the ~~principals~~ demised premises. Tenant shall in addition, at Landlord's request, furnish such other further information as Landlord in good faith may reasonably request concerning such proposed assignment or subletting. After receipt of such notice from Tenant, Landlord shall have the following options to be exercised within twenty (20) business days from the later to occur of (1) the receipt of Tenant's notice, or (2) if Landlord shall in good faith reasonably request additional information from Tenant, the receipt of such additional information when furnished by Tenant: (i) In the event Tenant's notice is of Tenant's desire to make an assignment or a subletting of all or substantially all of the demised premises Landlord shall have the option to cancel and terminate this Lease as of the date proposed by Tenant for such assignment or subletting, which options shall be exercised within the aforesaid twenty (20) business day period and on which date the term of this Lease shall cease and expire with the same force and effect as if such date were originally provided herein as the expiration of the term hereof. (ii) In the event Tenant's notice is of Tenant's desire to make a subletting for less than all or substantially all of the demised premises, Landlord shall have the option, to be exercised within said twenty (20) business day period, of cancelling and terminating this Lease only as to such portion of the demised premises to take effect as of the proposed effective date thereof as stated in Tenant's notice. In the event Landlord exercises its option under this subparagraph (ii) the rent and all other charges payable hereunder shall be equitably adjusted and apportioned based upon demised premises remaining bears to the total rentable area of the demised Premises Prior to said termination in part. If Landlord shall not exercise its foregoing options within the time set forth, its consent to any such proposed assignment or subletting shall not be unreasonably withheld or unduly delayed, provided, however, that Landlord may withhold consent thereto if in the exercise of its sole reasonable judgment it determines that: (i) The financial condition and general reputation of the proposed assignee or subtenant ~~and any other information reasonably requested by Landlord; (4) a financial statement~~ are not consistent with the extent of the ~~proposed assignee or subtenant, and its principals if not a publicly owned entity, certified to~~ obligation undertaken by a certified public accountant or financial officer of the proposed subtenant or assignee as of a date not more than twelve (12) months prior thereto; and (5) an agreement to indemnify, defend and hold Landlord harmless against any claim or liability for real estate brokerage commission payable with respect to any sublease or assignment by Tenant. (b) Xxxxxxxx agrees not to unreasonably withhold its consent to an assignment of this Lease or a subletting of the whole (but not part) of the Demised Premises to a single subtenant, provided that Xxxxxx has complied with the provisions of Paragraph A above. In determining reasonableness, Landlord may take into consideration all relevant factors surrounding the proposed assignment or sublease~~, including, without limitation~~. (ii) The proposed use of the demised premises is not appropriate for the Building or in keeping with the character of the existing tenancies or permitted by Tenant's Lease (however, the ~~financial stability (given the obligations hereunder and the fact that Xxxxxx has~~ proposed use shall not ~~been released from liability,~~ be limited to the ~~extent applicable~~uses provided for in Article 2 of this Lease if such use otherwise complies with the requirements of this Article 41). Anything to the contrary contained in this Article 41 notwithstanding, Tenant shall be prohibited from assigning this Lease or subletting the demised premises in whole or in part if the use intended for the demised premises in conjunction with any such assignment or sublease shall be or include any of the following: governmental or quasi-governmental offices, offices of foreign countries, employment agency, employment center, school, medical offices or medical care, not-for-profit organization, messenger service, club(s), entertainment, broadcast or transmission facility (including production facilities relating thereto) ~~reputation~~ laboratory, testing, training, classrooms, sales and ~~business experience~~ service of food and beverage, sale of alcohol, retail, wholesale or other sales offices of any kind whatsoever (other than for sales over the internet, which are not (i) on an off-the-street basis or (ii) consummated with customers at the demised premises), health club, restaurant or a use which is open to the public and/or a use which conflicts with an exclusive use clause granted under any lease then in effect at the Building. Upon Tenant's written request made in conjunction with a proposed sublease (but in no event more often than once in any consecutive twelve month period), Landlord shall deliver to Tenant a list of such exclusive use clauses, if any, in other tenant's leases then in effect at the Building as of the date of Landlord's notice, but nothing contained herein shall be deemed to restrict in any way, Landlord's right to grant additional exclusive use clauses at any time and from time to time after the date of such notice. (iii) The nature of the occupancy of the proposed assignee or subtenant ~~and~~ will cause an excessive density of employees or traffic or make excessive demands on the ~~proposed use~~ Building's services or facilities or in any other way lessen the character of the ~~Demised Premises (which proposed use, subject to this subparagraph (b) and Section 10.02(e), may differ from the Authorized Use) subsequent to such subletting or assignment~~Building. (civ) ~~If Xxxxxx believes~~ The Tenant proposes to assign or sublet to a party that at the time is a tenant or occupant of premises in the Building of which the demised premises are a part (or to a subsidiary or related entity of such a tenant or occupant) or to a party who who was engaged in active negotiations with Landlord ~~has unreasonably withheld its consent~~ or Landlord's agent (directly, or through a broker) with respect to space in the Building during the preceding six (6) month period. (v) the Tenant advertises or publicly notices (e.g., newspapers, radio, billboard, television, circular, fliers) to assign or sublet all or a ~~proposed subletting~~ portion of the demised premises at a rental rate less than the rental rate Landlord is then asking for other space in the Building or ~~assignment~~less than the then market rental rate. Subject to the above stated terms and conditions of this clause (v), Tenant ~~may~~shall be permitted to list with a broker the Lease to be assigned or all or such portion of the demised premises to be sublet without any restriction as to the rental rate. In the event Landlord should withhold or delay its consent to any proposed assignment or sublease, ~~within twenty (20) days after receiving notice~~ the sole remedy of Tenant shall be to institute action for specific performance if Tenant believes that such withholding or delaying of consent was unreasonable and Tenant hereby expressly waives any claim for monetary damages by reason of such withholding or delaying of consent by Landlord. Notwithstanding the foregoing provisions of this paragraph 41(c), if Tenant disputes the reasonableness of Landlord's decision to refuse to consent to any proposed assignment or sublease as to which Landlord has ~~withheld~~ agreed expressly in this Lease not to unreasonably withhold or delay its ~~consent, give notice to Landlord of Xxxxxx's intention to submit the question of whether Xxxxxxxx's~~ consent ~~was withheld unreasonably to expedited arbitration~~ in accordance with the ~~expedited procedures~~ provisions of this Lease, then such dispute shall be settled and finally determined by arbitration in the City of New York in accordance with the following provisions hereof. Within seven (7) business days next following the giving of any notice by Tenant to Landlord stating that Tenant wishes such dispute to be so determined, Landlord and Tenant shall each give notice to the other setting forth the name and address of an arbitrator designated by the party giving such notice, time being of the ~~American Arbitration Association~~ essence. If either party shall fail to give notice of such designation within said seven (~~"AAA"~~7) ~~Rules~~ business days, then the arbitrator to be chosen by such party shall be chosen in the same manner as hereinafter provided for the ~~Real Estate Industry (~~appointment of the ~~"Rules") except that: (i)~~ third arbitrator in the ~~list of~~ case where the two arbitrators ~~referred~~ chosen hereunder are unable to ~~in paragraph (b) of Rule 57 shall be returned to the AAA~~ agree upon such appointment. The two arbitrators shall, within five (5) business days after ~~submission~~ the designation of the ~~list;~~ second arbitrator, designate a third arbitrator. If the two arbitrators shall fail to agree upon the designation of a third arbitrator within five (~~ii) Landlord and Tenant shall notify the AAA within four (4~~5) business days after ~~an arbitrator is appointed~~ the designation of the second arbitrator, then either party may apply to the President of the Real Estate Board of New York, Inc. or any successor organization thereto (the "Board") for the designation of such arbitrator; provided, however, nothing contained herein shall be construed to require submission of any ~~objections they~~ dispute to the Board. If the Board shall fail to appoint said third arbitrator within thirty (30) days after such request is made, then either party may apply, on notice to the other, to the American Arbitration Association or any successor organization for the appointment of such third arbitrator. All arbitrators shall be persons who shall have ~~thereto~~ had at least ten (10) years continuous experience in the business of managing and operating office buildings having in excess of 500,000 rentable square feet or acting as real estate agents for office buildings of that size in the Borough of Manhattan and shall ~~have no right~~ be related to ~~object~~ neither Landlord nor Tenant. The three arbitrators shall conduct such hearings as they deem appropriate rendering their award in writing and give notice to ~~an arbitrator whose name was on the list submitted by the AAA~~ Landlord and ~~as to whom no objection was made in connection with Rule 57; (iii) to the extent acceptable to the arbitrator, the notice~~ Tenant of ~~hearing in Rule 58 shall be four (4) business days in advance of the hearing; and (iv) the hearing shall be held~~ their award within seven (7) business ~~days~~ days, if at all possible, after the ~~appointment~~ designation of the third arbitrator; the concurrence of any two of said arbitrators shall be binding upon Landlord and Tenant. In Any award of the ~~event~~ arbitrators shall be limited solely to (i) a determination as to whether Landlord acted reasonably in withholding any such consent or approval, and (ii) if the arbitrators determine that ~~Tenant prevails against~~ Landlord acted unreasonably, an order directing Landlord to promptly consent to said assignment or subletting. No such award shall include an award for damages. Judgment upon any award rendered in ~~an expedited~~ any arbitration ~~brought~~ held pursuant to this ~~Section 10.02(c)~~Footnote 41M may be entered in any court having jurisdiction. However, ~~Xxxxxxxx's sole liability~~ the award in any arbitration held pursuant to this Footnote 41M shall be final and binding upon Landlord and Tenant, whether or not a judgment shall be entered in any court. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Footnote 41M, each party shall pay the fees and expenses of the one of the two original arbitrators appointed by or for such party and the fees and expenses of the third arbitrator shall be borne by the parties equally. If the resolution of any such dispute shall be adverse to Landlord, Landlord, nevertheless shall not be liable to Tenant for ~~its refusal~~ a breach of Landlord's covenant not to ~~consent to an assignment proposed by Tenant~~ unreasonably withhold such consent, and Tenant's sole remedy in such event shall be to ~~consent thereto and Tenant hereby waives and relinquishes any and~~ enter into the proposed assignment or subletting subject to all claims for damages or other compensation by reason thereof. The foregoing reference to Rules 57 and 58 pertain to the Rules as amended and effective on May 1, 1994. In the event that a subsequent amendment applicable provisions of ~~the Rules becomes effective, the time frames set forth herein shall pertain, as applicable, to the substantive equivalent of those rules contained in such later version~~this Lease. (d) Further, and as a condition of Landlord's consent, to any assignment of subletting: 1. Tenant at the time of requesting Landlord's consent shall not be in default in the payment of any rent, additional rent, or other sums or charges provided to be paid by Tenant hereunder and further that Tenant is not then in material default otherwise under this Lease beyond the expiration of the applicable notice and cure period. 2. That each assignee of this Lease shall assume in writing all of the terms, covenants and conditions of this Lease on the part of Tenant hereunder to be performed and observed. 3. That an original or duplicate original of the instrument of assignment and assumption or the sublease agreement shall be delivered to Landlord ~~may~~within five (5) days following the making thereof; and 4. That any instrument of sublease shall specifically state that each sublease is subject to all of the terms, covenants and conditions of this Lease. If Tenant shall duly comply with all of the foregoing then, as aforesaid, Landlord shall not unreasonably withhold or unduly delay its consent to such assignment or subletting, provided further, however, and on condition that at the time of requesting Landlord's consent Tenant shall pay to Xxxxxx Xxxxxxxx Company, Inc. the sum of $1,000.00 as a processing fee for each assignment and/or subletting which shall include the Landlord's legal costs in connection with the Tenant's request for consent. (e) It is agreed that if Landlord shall not exercise any of its ~~sole discretion~~foregoing options and shall consent to such assignment or subletting, and Tenant shall thereupon assign this Lease or sublet all or any portion of the demised premises, then and in ~~lieu~~ that event Tenant shall pay to Landlord, as additional rent, (i) in the event of ~~consenting to a proposed subletting or~~ an assignment, ~~elect~~ the amount of monies, if any, which the assignee has agreed to ~~cancel~~ and ~~terminate this Lease by delivering~~ does pay to Tenant in consideration of the making of such assignment less however all out of pocket costs actually incurred by Tenant in connection with the making of such assignment, including but not limited to any brokerage fees, advertising and alteration costs; and (ii) in the event of a subletting, (x) the amount, if any, by which the fixed basic rent and additional rent payable by the sublessee to Tenant shall exceed the fixed basic rent plus additional rent allocable to that part of the demised premises affected by such sublease pursuant to the provisions of this Lease, plus (y) the amounts, if any, payable by such sublessee to Tenant pursuant to any side agreement as consideration (partial or otherwise) for Tenant making such subletting less reasonable out of pocket costs actually incurred by Tenant in connection with the making of such sublease, including, but not limited to any reasonable brokerage fees, advertising and alteration costs incurred pursuant to the express terms of said sublease to prepare the affected portion of the demised premises for occupancy by such subtenant. Such additional rent payments shall be made monthly within ten (10) ~~business~~ days ~~following Xxxxxx's request for~~ after Tenant is credited with the same by the assignee or sublessee. At the time of submitting the proposed assignment or sublease to Landlord~~'s consent and~~, Tenant shall certify to Landlord in writing whether or not the assignee or sublessee has agreed to pay any monies to Tenant in consideration of the making of the assignment or sublease other than as specified and set forth in such ~~event, upon the date specified in Tenant's notice of its intention to assign this Lease or sublet the Premises, as applicable~~instruments, and if so Tenant shall certify the ~~Term shall come to an end~~ amounts and ~~expire as fully as if the date specified~~ time of payment thereof in ~~such notice was the Expiration Date hereunder~~reasonable detail. (e) No part of the Demised Premises may be used, assigned or sublet for the following uses: nude or semi-nude dancing; bar, tavern or cocktail lounge, except as part of a restaurant operation; "adult" or "X-rated" book or movie store (except that this provision shall not prohibit the sale or rental of "adult" or "X-rated" video tapes as part of the business of a video store offering a substantial selection of other types of video tapes as a majority of its selection); for the display or sale of pornographic materials; adult movie theater; so-called "head shops," selling or displaying drug paraphernalia; massage parlor; industrial purposes; warehouse; entertainment or recreation facilities; training or education facilities; renting, leasing or selling or displaying for the purpose of renting, leasing or selling of any boat, motor vehicle or trailer; flea market; or on-site dry cleaning plant. "Entertainment or recreation facility," as used herein, shall include, without limitation, a bowling alley, dance hall, billiard or pool hall, game parlor, or video arcade (containing more than four (4) electronic games). "Training or education facility" by definition shall include, without limitation, a beauty school, xxxxxx college, reading room, place of instruction, or any operation catering primarily to students or trainees as opposed to customers. For the purposes of this Subsection "e", "pornographic materials" shall be any books, magazines, newspapers or videotapes which would be obscene under prevailing laws. (af) If this ~~Lease is assigned~~ lease shall be assigned, or if the ~~Demised Premises is~~ demised premises or any part thereof be sublet or occupied by ~~anyone~~ any person or persons other than Tenant, ~~Landlord~~Landlord may, ~~upon the occurrence of an Event of Default and~~ after default by Tenant~~'s failure to cure following applicable notice~~, ~~may~~ collect ~~Fixed Rent, additional~~ rent ~~and other charges~~ from the assignee, ~~sublessee~~ subtenant or ~~occupant,~~ occupant and apply the net amount collected (which may be treated by Landlord as rent or as use and occupancy) to the ~~Fixed Rent, additional~~ rent ~~and other charges~~ herein ~~provided,~~ reserved but ~~unless Landlord in its sole discretion otherwise elects,~~ no such assignment, subletting, occupancy or collection of rent shall be deemed a waiver of ~~any covenant by Tenant under~~ the covenants in this ~~Article 10~~Article, nor shall ~~the same~~ it be deemed ~~the~~ acceptance of the assignee, ~~sublessee~~ subtenant or occupant as a tenant, or a release of Tenant from the ~~further~~ full performance by Tenant of all the terms, conditions and covenants of this Lease. (g) Each permitted assignee or transferee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the rent, additional rent, and adjustment of rent, and for the due performance of all the ~~covenants~~ terms, covenants, conditions and agreements herein contained on ~~the~~ Tenant's part ~~of Tenant~~ to be performed ~~herein contained. (b) If Landlord shall~~ for ~~any reason or cause recover or come into possession~~ the term of ~~the Demised Premises before the Expiration Date, Landlord shall have the right at its option to take over any~~ this Lease and all subleases or sublettings of the Demised Premises or any part or parts thereof made or granted by Xxxxxx and to succeed to all the rights and privileges of said subleases and sublettings or such of them as it may elect to take over and assume; and Tenant hereby expressly assigns and transfers to Landlord such of the subleases and sublettings as Landlord may elect to take over and assume at the time of such recovery of possession, and Tenant shall upon request of Landlord execute, acknowledge and deliver to Landlord such further assignments and transfers as may be necessary, sufficient and proper to vest in Landlord the then existing subleases and subletting.any

Appears in 1 contract

Samples: Lease Agreement (Barnesandnoble Com Inc)

Common use of ASSIGNMENT, SUBLETTING, MORTGAGING Clause in Contracts