Assignment Subleasing (a) With the exception of a tenant that would render any Leased Property or a portion thereof a “tax-exempt use property” within the meaning of Section 168(h) of the Code, Tenant may assign its interest in this Lease and may sublet or grant licenses to any Leased Property in whole or in part, from time to time, without the consent of Landlord, provided that, in the case of an assignment, Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving effect to such assignment. Tenant shall have no rights to mortgage or otherwise hypothecate its leasehold interest under this Lease. With respect to any assignment or sublease to an entity that is not an Affiliate of Tenant and which relates to at least 10% of the usable square feet of any Leased Property, Tenant shall provide Landlord with a written summary of the material terms of such assignment or sublease prior to the commencement date thereof. For purposes of this Paragraph 17(a), the term “assignment” and “assign” shall not include any sale of the stock of Tenant, provided that (i) the Lease Guarantor reaffirms its obligations under the Lease Guaranty after giving effect to such sale and (ii) such sale does not result in an Event of Default.
(b) Each sublease or license of a Leased Property or any part thereof shall be subject and subordinate to the provisions of this Lease, and the term of each such sublease shall terminate on or before the Expiration Date. No assignment or sublease shall affect or reduce any of the obligations of Tenant hereunder, and all such obligations shall continue in full force and effect as obligations of a principal and not as obligations of a guarantor, as if no assignment or sublease had been made, provided that if Tenant assigns its interest hereunder to any entity that has acquired all, or substantially all, of Tenant’s assets, Tenant shall be relieved of all of its obligations under this Lease from and after the effective date of such assignment so long as (i) the assignee has executed the agreement referred to below in this paragraph and (ii) such sale or transfer of assets by Tenant does not result in an Event of Default. Notwithstanding any assignment or subletting, but subject to the foregoing sentence, Tenant shall continue to remain primarily liable and responsible for the payment of the Basic Rent and Additional Rent and the performance of all its other obligations under this Lease. No assignment or sublease shall impose any obligations on Landlord, except as otherwise provided in this Lease. Tenant agrees that in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by Tenant and its assignee in recordable form wherein the assignee shall agree to assume and agree to observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment. In the case of a sublease which relates to more than 10% of the usable square feet of a Leased Property, Tenant shall, within fifteen (15) days after the execution and delivery of such sublease, deliver to Landlord a duplicate original of such sublease; with respect to each other sublease, Tenant shall provide a copy thereof to Landlord promptly after Landlord’s request therefor.
(c) Upon the occurrence and during the continuance of an Event of Default under this Lease, Landlord shall have the right to collect and enjoy all rents and other sums of money payable under any sublease or license of any Leased Property, and Tenant hereby irrevocably and unconditionally assigns such rents and money to Landlord, which assignment may be exercised upon and after (but not before) the occurrence of an Event of Default, provided, however, that if such Event of Default is subsequently cured and this Lease has not been terminated, Landlord shall pay to Tenant all amounts it received pursuant to such assignment that have not been applied to the obligations of Tenant hereunder.
Lien Waivers Each Application for Payment shall be accompanied by written waivers of the right to file a mechanic's lien and all other claims, in a form substantially similar to Exhibit G for the Design-Builder and all Subcontractors and material suppliers at all tiers who have supplied labor or material or both for which payment is requested, subject only to receipt of payment. If the Department so requests, the Design-Builder shall also submit unconditional waivers of liens for itself and all Subcontractors and material suppliers at all tiers with respect to Work or materials or equipment for which payment has been previously made, and additional forms of waiver acknowledging receipt of final payment under the Contract, and providing final release of such liens.
Tenant Estoppels (a) Each Seller shall prepare and deliver to each Tenant at such Seller’s Property an estoppel certificate in the form of Exhibit A attached hereto (the “Tenant Estoppel”) and request each such Tenant to execute and deliver the Tenant Estoppel to such Seller. Each Seller shall use commercially reasonable efforts to obtain the prompt return of the executed Tenant Estoppels in substantially the same form as Exhibit A attached hereto from each Tenant at such Seller’s Property prior to the Closing, without the obligation to make any payments or grant any concessions under the Leases. If a Tenant returns an executed Tenant Estoppel (or Lease Required Estoppel or Statement of Lease as defined below) to such Seller, such Seller shall promptly deliver to the Buyer, or make available on Seller’s transaction website, a copy of such executed Tenant Estoppel (or Lease Required Estoppel or Statement of Lease, if applicable) following such Seller’s receipt of such Tenant Estoppel (or Lease Required Estoppel or Statement of Lease, if applicable).
(b) In the event that the Closing hereunder shall occur simultaneously with the Initial Closing, it shall be a condition to the Buyer’s obligation to close the sale and purchase of the Transferred Assets that, on or before the Initial Closing Date, the Sellers deliver to the Buyer from Tenants (other than the GSA and the Tenants of the properties associated with the LLC Interests and the Partnership Interests (as each such term is defined in the Master PSA), unless the applicable joint venture partner elects to sell all of its interest in the applicable joint venture entity and separate agreements for the sale of such properties to the Buyer are entered into as contemplated in Section 3.9(a)(y) and Section 3.9(b)(y), respectively, of the Master PSA) whose Leases comprise at least seventy-five percent (75%) of remaining base rental income over the lease term as of the date of this Agreement as determined in accordance with the schedule delivered by the Sellers to the Buyer prior to the date hereof, signed tenant estoppel certificates that are substantially in the form of either (1) the Tenant Estoppel or (1) except with respect to ROFO Documents and ROFR Documents (for which Tenant Estoppels, and not Lease Required Estoppels, shall be required), with respect to those Leases that contain a required form of specific estoppel that is attached as an exhibit to such Lease, the form of estoppel attached to such Lease (each, a “Lease Required Estoppel”); provided, however, that Buyer may, in its sole discretion, in order to accommodate Serial Closings pursuant to the Master PSA, waive the requirement set forth in this Section 3.4(b), which shall also constitute a waiver of such corresponding requirement in each Other PSA (and in such event, Seller shall be under no obligation to provide a Sellers’ Estoppel Certificate). For purposes of this Section 3.4(b) only, the terms “Tenants” and “Leases” shall refer to the Tenants and the Leases in respect of the Properties to be purchased and sold pursuant to this Agreement and the “Tenants” and “Leases” (as each such term is defined in each of the Other PSAs) in respect of the “Properties” (as such term is defined in each of the Other PSAs) to be purchased and sold pursuant to each Other PSA, collectively. No Tenant Estoppel or Lease Required Estoppel shall be dated earlier than forty-five (45) days prior to the Initial Closing Date and no such estoppel shall allege any material defaults by the Sellers (except to the extent any such default has been disclosed in writing by the Sellers to the Buyer as of the date of this Agreement) or accrued and outstanding offsets or defenses under the relevant Lease or contain any materially adverse deviations between (A) the information specified in said Tenant Estoppel or Lease Required Estoppel, as applicable, and (B) (x) the representations and warranties of the Sellers set forth in this Agreement or (y) the Leases to which such Tenant Estoppel or Lease Required Estoppel, as applicable, relate. Notwithstanding anything to the contrary in this Section 3.4, Sellers shall also use commercially reasonable efforts to obtain a Statement of Lease from the GSA with respect to each Lease to which the GSA is a party. The Buyer shall cooperate with the Sellers to obtain (i) any novation of the applicable Lease with the GSA that may be required by the GSA in order to assign the applicable Lease to the Buyer or its applicable Designated Subsidiary and (ii) any Statement of Lease. In the event the GSA requires any Seller to remain liable under the applicable Lease with the GSA after the Closing Date, the Buyer hereby agrees to indemnify and hold harmless each such Seller against any Losses (as defined below) arising out of such Lease after the Closing Date except to the extent such Losses are the result of any action taken by any such Seller or its Affiliates with respect to such Leases with the GSA.
SNDA Xxxxxxxx agrees to request a subordination and non-disturbance agreement (an “SNDA”) from its current Mortgagees in the form attached hereto as Exhibit A (which is consistent with the form of SNDA attached to that certain Loan Agreement dated as of [***], as amended by that certain First Amendment to Loan Agreement and Other Loan Documents dated as of [***] (collectively, as the same may be amended, restated and/or replaced from time to time, the “Loan Agreement”), by and among Landlord, as mortgagor, the current Mortgagees and certain other parties thereto (the “Required Form of SNDA”)) with such changes requested by Xxxxxx, within thirty (30) days after the Execution Date. Landlord agrees to use reasonable efforts, at no cost to Landlord, to obtain the SNDA substantially in the form attached hereto as Exhibit A from such Mortgagees. Landlord will not obstruct Xxxxxx’s negotiations with the Mortgagees regarding Xxxxxx’s requested changes to such SNDA. Tenant acknowledges that, while Tenant may request changes to the Required Form of SNDA from the current Mortgagees, the current Mortgagees have no contractual or other obligation to deliver any SNDA other than the Required Form of SNDA, and there is no definite time period during which such Mortgagees are required to respond to any request for or to deliver a Required Form of SNDA under the Loan Agreement, and therefore, any refusal or failure to deliver or delay in delivering any SNDA to Tenant shall not constitute a default of Landlord under the Lease. For purposes of clarity, using “reasonable efforts” to obtain the Required Form of SNDA from the Mortgagees shall not require Landlord to assert any default of Mortgagees or otherwise take any enforcement actions under the Loan Agreement or any other loan documents affecting the Premises. Within [***] days after Xxxxxxxx’s written demand therefor, together with reasonable supporting documentation, Tenant shall reimburse any fees charged by the Mortgagees or their legal counsel pursuant to the Loan Agreement and any other third party out-of-pocket costs incurred by Landlord in connection with the request for, drafting or negotiation of and/or delivery of any SNDA requested by Tenant under this Amendment, regardless of whether the current Mortgagees agree to or actually execute and deliver such SNDA.
Estoppel Certificate or Subordination Agreement Tenant fails to execute any document required from Tenant under Sections 23 or 27 within 5 days after a second notice requesting such document.
Subordination to Mortgages; Estoppel Certificate Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building or the Property, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. Upon request, Tenant, without charge, shall attorn to any successor to Landlord’s interest in this Lease. Landlord and Tenant shall each, within 10 days after receipt of a written request from the other, execute and deliver a commercially reasonable estoppel certificate to those parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser). Without limitation, such estoppel certificate may include a certification as to the status of this Lease, the existence of any defaults and the amount of Rent that is due and payable. Notwithstanding the foregoing, upon written request by Tenant, Landlord will use reasonable efforts to obtain a non-disturbance, subordination and attornment agreement from Landlord’s then current Mortgagee on such Mortgagee’s then current standard form of agreement. “Reasonable efforts” of Landlord shall not require Landlord to incur any cost, expense or liability to obtain such agreement, it being agreed that Tenant shall be responsible for any fee or review costs charged by the Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee’s form of non-disturbance, subordination and attornment agreement and return the same to Landlord for execution by the Mortgagee. Landlord’s failure to obtain a non-disturbance, subordination and attornment agreement for Tenant shall have no effect on the rights, obligations and liabilities of Landlord and Tenant or be considered to be a default by Landlord hereunder.
Estoppels (i) Sellers shall have received from tenants (which tenants shall include the tenants leasing space pursuant to the Commercial Leases listed on Schedule 8.2(f)(i) of the Seller Disclosure Letter) leasing at least seventy-five percent (75%) of the aggregate square footage leased pursuant to all Commercial Leases, a certificate (an "Estoppel"), addressed to the Company and its lender (as defined in the Estoppel attached as Exhibit D hereto), dated not more than sixty (60) days prior to the Closing Date, in either (A) the form of Estoppel attached as Exhibit D hereto or (B) the form of Estoppel returned by the tenant whose Estoppel is being sought pursuant to this Section 8.2(f)(i) provided such form of Estoppel is substantially comparable to the form of Estoppel attached as Exhibit D hereto. The Company hereby acknowledges and agrees that, in lieu of any one or more of such Estoppels, MPLP may deliver a landlord Estoppel provided that (A) such form of landlord Estoppel is in the form of Estoppel attached as Exhibit D hereto, (B) the landlord Estoppels delivered by MPLP pursuant to this Section 8.2(f)(i) shall not be given in respect of more than ten percent (10%) of the aggregate square footage leased pursuant to all Commercial Leases and (C) such landlord Estoppels delivered by MPLP shall not be delivered in respect of the Commercial Leases listed on Schedule 8.2(f)(i) of the Seller Disclosure Letter.
(ii) Sellers shall have received an Estoppel from each lessor under a Ground Lease, addressed to the Company and its lender (as defined in the Estoppel attached as Exhibit E hereto), dated not more than sixty (60) days prior to the Closing Date in either (A) the form of Estoppel attached as Exhibit E hereto or (B) the form of Estoppel returned by the lessor whose Estoppel is being sought pursuant to this Section 8.2(f)(ii) provided such form of Estoppel is substantially comparable to the form of Estoppel attached as Exhibit E hereto.
ASSIGNMENT & SUBLETTING A. Lessor shall have the right to sell, convey or mortgage all, but not less than all, of the Properties or to assign its right, title and interest as Lessor under this Lease in whole, but not in part; provided, however, the prohibition on Lessor's right to sell, convey or mortgage less than all of the Properties shall not restrict Lessor's right to convey Properties to Lessee pursuant to the provisions of Sections 21.B, 23.A(ix), 57 or 58 hereof. In the event of any such sale or assignment other than a security assignment, provided Lessee receives written notice that such purchaser or assignee has assumed all of Lessor's obligations under this Lease, Lessee shall attorn to such purchaser or assignee and Lessor shall be relieved, from and after the date of such transfer or conveyance, of liability for the performance of any obligation of Lessor contained herein, except for obligations or liabilities accrued prior to such assignment or sale.
B. Lessee acknowledges that Lessor has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Properties in entering into this Lease. Without the prior written consent of Lessor and except as provided below: (i) Lessee shall not assign, transfer or convey this Lease or any interest therein, whether by operation of law or otherwise; (ii) no Subject Transfer shall occur; (iii) no interest in Lessee or any of the Guarantors shall be pledged, encumbered, hypothecated or assigned as collateral for any obligation of any of the Lessee Entities; and (iv) Lessee shall not sublet all or any part of any of the Properties. It is expressly agreed that Lessor may withhold or condition such consent based upon such matters as Lessor may in its reasonable discretion determine, including, without limitation, the experience and creditworthiness of any assignee, the assumption by any assignee of all of Lessee's obligations hereunder by undertakings enforceable by Lessor, the transfer to any assignee of all necessary licenses and franchises to continue operating the Properties for the purposes herein provided, receipt of such representations and warranties from any assignee as Lessor may request, including such matters as its organization, existence, good standing and finances and other matters, whether or not similar in kind. At the time of any assignment of this Lease which is approved by Lessor, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to Lessor's standard form of assumption agreement. No such assignment nor any subletting of any of the Properties shall relieve Lessee of its obligations respecting this Lease or Guarantors of any of their obligations respecting the Guaranty. Any rentals owing under a sublease which are in excess of the rentals owing hereunder may be retained by Lessee unless an Event of Default has occurred, in which case, Lessor shall be entitled to receive such excess rentals applicable to the period during which such Event of Default is continuing. Any assignment, transfer, conveyance, pledge, mortgage or subletting in violation of this Section shall be voidable at the sole option of Lessor.
C. Notwithstanding the provisions of Section 26.B, Lessor's consent to a Subject Transfer shall not be required if each of the following conditions are satisfied:
(i) no Event of Default shall have occurred and be continuing under this Lease as of the date on which Lessee gives the Subject Transfer Notice (as hereinafter defined) and as of the date on which such Subject Transfer is consummated;
(ii) after giving effect to such Subject Transfer, whether as a single transaction or as a series of transactions, the Lessee Entities, including any surviving entity as a result of such Subject Transfer and/or successor of Lessee or any of the Guarantors, shall have a consolidated net worth determined in accordance with GAAP of not less than the sum of (1) $29,690,500.00, plus (2) fifty (50%) percent of Net Income, if positive, for each fiscal quarter of the Lessee Entities ending after the Effective Date (i.e., exclusive of any negative Net Income for any such fiscal quarter) determined on a cumulative basis subsequent to the Effective Date, plus (3) seventy-five (75%) percent of the proceeds of any issuance of equity securities of any of the Lessee Entities or other contributions to the capital of any of the Lessee Entities subsequent to the Effective Date (the "Net Worth Condition");
(iii) Lessee and Guarantors, including any surviving entity as a result of such Subject Transfer and/or successor of Lessee or any of the Guarantors, shall not be released from any of their respective obligations under this Lease and the Guaranty, and any such surviving entity or successor entity, as applicable, has assumed in writing or by operation of law (provided Lessor has received a satisfactory opinion of counsel confirming that such assumption will occur by operation of law) all obligations of Lessee under this Lease or Guarantors under the Guaranty, as applicable;
(iv) after giving effect to such Subject Transfer, whether as a single transaction or as a series of transactions, the Lessee Entities shall have a Corporate Fixed Charge Coverage Ratio (as hereinafter defined) determined as of the end of Lessee's most recently closed fiscal quarter on a proforma basis after giving effect to such Subject Transfer of at least equal to 1.50:1 (the "Corporate Fixed Charge Coverage Ratio Condition")
(v) after such Subject Transfer, the Properties will be operated as a Permitted Facility or such other nationally or regionally recognized casual dining concepts reasonably acceptable to Lessor;
(vi) the Lessee Entities, including any surviving entity as a result of such Subject Transfer and/or successor of Lessee or any of the Guarantors, shall have at least 5 years' experience operating a multi-unit casual dining restaurant concept with the same or greater number of units as are operated by the Lessee Entities immediately prior to the consummation of such Subject Transfer;
(vii) if and to the extent that the loans contemplated by the Loan Documents have been subject to a Securitization, Lender shall have received a notice or confirmation of the rating agencies which have issued ratings in connection with such Securitization that such Subject Transfer will not cause any of such rating agencies to downgrade, modify, withdraw or qualify any of such ratings (the "Rating Agency Condition"); and
(viii) Lessee shall have delivered to Lessor a certification that all of the conditions to such Subject Transfer set forth in this Section 26.C have been satisfied. Notwithstanding the foregoing, in the event that Lessee is unable to satisfy the Net Worth Condition, the Corporate Fixed Charge Coverage Ratio Condition and/or the Rating Agency Condition, such conditions shall be deemed satisfied if Lessee shall (1) pay to Lessor the Subject Transfer Rent Prepayment Amount (as hereinafter defined), and (2) pay to Lessor the Prepayment Charges payable by Lessor to Lender as a result of the payment of the Subject Transfer Rent Prepayment Amount. Upon Lessee's payment of the Subject Transfer Rent Prepayment Amount and Prepayment Charges as contemplated by the preceding sentence, Lessor agrees that the Base Monthly Rental beginning with the calendar month immediately following the month in which such payment is made (or, if such payment is made on the first day of a calendar month, beginning with the calendar month in which such payment is made) shall be equal to the Base Monthly Rental then in effect reduced by the Subject Transfer Rent Reduction Amount (as hereinafter defined) For purposes of this Section 26.C, the following terms shall be defined as set forth below:
Landlord Waiver If requested by Dell, You will arrange (or You will ensure that Customer arranges) for Customer Site landlord to sign a landlord waiver agreement confirming Dell’s ownership of the APEX System and Dell’s right to access the APEX System in connection with the APEX Service and this Agreement.
Tenant Estoppel Certificate Please refer to the documents described in Schedule 1 hereto, (the “Lease Documents”) including the “Lease” therein described; all defined terms in this Certificate shall have the same meanings as set forth in the Lease unless otherwise expressly set forth herein. The undersigned Tenant hereby certifies that it is the tenant under the Lease. Tenant hereby further acknowledges that it has been advised that the Lease may be collaterally assigned in connection with a proposed financing secured by the Property and/or may be assigned in connection with a sale of the Property and certifies both to Landlord and to any and all prospective mortgagees and purchasers of the Property, including any trustee on behalf of any holders of notes or other similar instruments, any holders from time to time of such notes or other instruments, and their respective successors and assigns (the “Beneficiaries”) that as of the date hereof:
