Conditions of Transfer. The following terms and conditions apply in respect of a Transfer: (a) the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer; (b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee; (c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration; (d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings; (e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and (f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
Appears in 2 contracts
Samples: Office Lease (Adven Inc.), Office Lease (Adven Inc.)
Conditions of Transfer. 24.2.1 The following consent of the Obligors is not required for a Transfer by an Existing Lender to any Permitted Transferee, to an Affiliate of an Existing Lender or to any other Lender or an Affiliate of another Lender. The consent of the Original Borrower (on its own behalf and on behalf of the other Obligors) is required for a Transfer to any other prospective transferee, unless the assignment or transfer takes effect at a time when an Event of Default has occurred or is continuing.
24.2.2 Where the consent of the Original Borrower to a Transfer is required in terms of Clause 24.2.1 of this Clause, that consent must not be unreasonably withheld or delayed. The Original Borrower will be deemed to have given its consent 5 (five) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Original Borrower within that time. Any consent provided by the Original Borrower shall be binding on all of the other Obligors.
24.2.3 The Original Borrower (acting reasonably) shall at any time be entitled to deliver a written notice to the Facility Agent specifying that it wishes to remove a bank or financial institution from the agreed list of Permitted Transferees, which notice shall set out reasonable grounds for the Original Borrower’s request. If the Facility Agent is satisfied (acting reasonably) that the Original Borrower has reasonable grounds for such removal, the Facility Agent shall notify the Original Borrower in writing accordingly and such bank or financial institution shall thereupon be removed from the agreed list of permitted transferees, provided that, to the extent that such bank or financial institution is already a Lender as at the date of such removal, such removal shall not obligate any Finance Party to acquire or re-acquire such bank or financial institution’s participation in any Loans.
24.2.4 In the event an Existing Lender executes a Transfer as contemplated in Clause 24.1 above, the Existing Lender shall procure that the New Lender agrees to become bound by all the terms and conditions apply of the Finance Documents to which the Existing Lender is a party as a party thereto.
24.2.5 A Transfer will only be effective if the procedure set out in respect of a TransferClause 24.4 (Procedure for transfer) is complied with.
24.2.6 If:
(a) the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall not be released from performing 24.2.6.1 a Lender Transfers any of its rights or obligations under the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early TerminationFinance Documents; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
Appears in 2 contracts
Samples: Term and Revolving Credit Facilities Agreement, Term and Revolving Credit Facilities Agreement (Sibanye Gold LTD)
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) if the Transfer is an assignment of this Lease in whole or in part, the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the TransferLease;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee. Without limiting the foregoing, the Tenant shall be responsible for all acts or omissions of any subtenant, licensee or occupant;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, for cash allowances and for alterations Alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will execute a covenant in the Landlord’s form and will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “"Early Termination”") by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
Appears in 2 contracts
Samples: Lease Agreement (Nevada Geothermal Power Inc), Lease Agreement (Argentex Mining Corp)
Conditions of Transfer. 23.2.1. The following consent of the Obligors is not required for a Transfer by an Existing Lender to any Permitted Transferee, to an Affiliate (as defined in Schedule 13 (Permitted Transferees)) of an Existing Lender or to any other Lender or an Affiliate (as defined in Schedule 13 (Permitted Transferees)) of another Lender on written notice to the Original Borrower. The consent of the Original Borrower (on its own behalf and on behalf of the other Obligors) is required for a Transfer to any other prospective transferee, unless the assignment or transfer takes effect at a time when an Event of Default has occurred or is continuing.
23.2.2. Where the consent of the Original Borrower to a Transfer is required in terms of Clause 23.2.1, that consent must not be unreasonably withheld or delayed. The Original Borrower will be deemed to have given its consent 10 (ten) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Original Borrower within that time. Any consent provided by the Original Borrower shall be binding on all of the other Obligors.
23.2.3. The Original Borrower (acting reasonably) shall at any time be entitled to deliver a written notice to the Facility Agent specifying that it wishes to remove a bank or financial institution from the agreed list of Permitted Transferees, which notice shall set out reasonable grounds for the Original Borrower’s request. If the Facility Agent is satisfied (acting reasonably) that the Original Borrower has reasonable grounds for such removal, the Facility Agent shall notify the Original Borrower in writing accordingly and such bank or financial institution shall thereupon be removed from the agreed list of permitted transferees, provided that, to the extent that such bank or financial institution is already a Lender as at the date of such removal, such removal shall not obligate any Finance Party to acquire or re-acquire such bank or financial institution’s participation in any Loans.
23.2.4. In the event an Existing Lender executes a Transfer as contemplated in Clause 23.1 above, the Existing Lender shall procure that the New Lender agrees to become bound by all the terms and conditions of the Finance Documents to which the Existing Lender is a party as a party thereto.
23.2.5. A Transfer will only be effective if the procedure set out in Clause 23.4 (Procedure for transfer) is complied with.
23.2.6. If:
23.2.6.1. a Lender Transfers any of its rights or obligations under the Finance Documents; and
23.2.6.2. as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender under Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased Costs), then the New Lender is only entitled to receive payment under those Clauses to the same extent as the Existing Lender would have been if the Transfer or change had not occurred. This Clause 23.2.6 shall not apply in respect of a Transfer:Transfer made in the ordinary course of the primary syndication of the Facilities.
(a) 23.2.7. Each New Lender, by executing the Tenant and relevant Transfer Certificate, confirms, for the Transferee shall executeavoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be becomes effective in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease Agreement and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding bound by that the Landlord may collect rent from the Transferee;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant decision to the Landlord. If same extent as the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease Existing Lender would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transfereebeen had it remained a Lender.
Appears in 1 contract
Samples: Term and Revolving Credit Facilities Agreement (Sibanye Gold LTD)
Conditions of Transfer. The following terms (A) If there is a permitted Transfer, the Landlord may collect Rent from the Transferee and conditions apply in respect the net amount collected to the Rent required to be paid pursuant to this Lease but no acceptance by the Landlord of any payments by a Transfer:
(a) Transferee shall be deemed a waiver of any provisions hereof regarding Tenant. Any consent by the Landlord shall be subject to the Tenant and the Transferee shall execute, prior to the Transfer being made, executing an agreement with the Landlord in agreeing (i) that the Landlord’s form including the Transferee’s covenant to Transferee will be bound by all of the terms of this Lease as if such Transferee had originally executed this Lease as tenant and (ii) to amend the Lease to incorporate such terms, covenants and any other reasonable conditions as are necessary so that the Lease will be in accordance with the imposed by Landlord’s standard form of lease in use for the Building at the time of the Transfer;.
(bB) notwithstanding any Upon a permitted Transfer, the Tenant shall remain liable thereby be released of all obligations accruing under this Lease and shall not be released from performing any after the date of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;Landlord's consent to such Transfer.
(cC) The Landlord's consent to any Transfer shall be subject to the further condition that if the basic Minimum Rent and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) Additional Rent pursuant to be paid by the Transferee under such Transfer exceeds the Basic Minimum Rent and Additional Rent payable by the Tenant hereunderunder this Lease, the amount of such excess shall be paid by the Tenant to the Landlord. If If, pursuant to a permitted Transfer, the Tenant receives from any the Transferee, either directly or indirectly, any consideration other than basic rent or additional rent Minimum Rent and Additional Rent for such Transfer, either in the form of cash, goods goods, or services, the Tenant shall immediately shall, upon receipt thereof, pay to the Landlord an amount equivalent to such consideration;. The Tenant and the Transferee shall execute any agreement reasonably required by the Landlord to effect the foregoing provisions.
(dD) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding Notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Minimum Rent and Additional Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Minimum Rent and Additional Rent for such month from either the Tenant or the Transferee.
(E) Any document evidencing any Transfer permitted by the Landlord, or setting out any terms applicable to such Transfer or the rights and obligations of the Tenant or Transferee thereunder, shall be prepared by the Landlord or its attorneys and all reasonable legal costs with respect thereto shall be paid by the Tenant.
Appears in 1 contract
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) If there is a permitted Transfer, the Landlord may collect Rent from the Transferee and apply the amount collected to the Rent payable under this Lease but no acceptance by the Landlord of any payments by a Transferee shall be deemed to be a waiver of the Tenant's covenants or any acceptance of the Transferee as a tenant or a release of the Tenant from the further performance by the Tenant of its obligations under this Lease. Any consent by the Landlord shall be subject to the Tenant and the Transferee shall executeexecuting, prior to the Transfer being made, an agreement with the Landlord in agreeing that the Landlord’s form including the Transferee’s covenant to Transferee will be bound by all of the terms of this Lease Lease, and to amend except in the Lease to incorporate such termscase of a sublease, covenants and conditions as are necessary so that the Lease Transferee will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;so bound as if it had originally executed this Lease as tenant.
(b) notwithstanding Notwithstanding any TransferTransfer permitted or consented to by the Landlord, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;.
(c) if If the basic and additional rent Transfer in respect of which consent has been given is not completed within sixty (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term 60) days of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount date of such excess shall be paid by the Tenant to consent, then such consent shall, at the Landlord. If the Tenant receives from any Transferee's option, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;become void.
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding Notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
(e) The agreements referred to in this Section 12.03 and any document evidencing the Landlord's consent to any Transfer shall, at the Landlord's option, be prepared by the Landlord or its solicitors at the Tenant's cost, which costs shall not exceed One Thousand Dollars ($1,000.00).
Appears in 1 contract
Samples: Lease Agreement (Pri Automation Inc)
Conditions of Transfer. 23.2.1. The following consent of the Obligors is not required for a Transfer by an Existing Lender to any Permitted Transferee, to an Affiliate (as defined in Schedule 12 (Permitted Transferees)) of an Existing Lender or to any other Lender or an Affiliate (as defined in Schedule 12 (Permitted Transferees)) of another Lender on written notice to the Original Borrower. The consent of the Original Borrower (on its own behalf and on behalf of the other Obligors) is required for a Transfer to any other prospective transferee, unless the assignment or transfer takes effect at a time when an Event of Default has occurred or is continuing. AMENDED & RESTATED TERM & REVOLVING CREDIT FACILITY AGREEMENT_EXECUTION
23.2.2. Where the consent of the Original Borrower to a Transfer is required in terms of Clause 23.2.1, that consent must not be unreasonably withheld or delayed. The Original Borrower will be deemed to have given its consent 10 (ten) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Original Borrower within that time. Any consent provided by the Original Borrower shall be binding on all of the other Obligors.
23.2.3. The Original Borrower (acting reasonably) shall at any time be entitled to deliver a written notice to the Facility Agent specifying that it wishes to remove a bank or financial institution from the agreed list of Permitted Transferees, which notice shall set out reasonable grounds for the Original Borrower’s request. If the Facility Agent is satisfied (acting reasonably) that the Original Borrower has reasonable grounds for such removal, the Facility Agent shall notify the Original Borrower in writing accordingly and such bank or financial institution shall thereupon be removed from the agreed list of permitted transferees, provided that, to the extent that such bank or financial institution is already a Lender as at the date of such removal, such removal shall not obligate any Finance Party to acquire or re-acquire such bank or financial institution’s participation in any Loans.
23.2.4. In the event an Existing Lender executes a Transfer as contemplated in Clause 23.1 above, the Existing Lender shall procure that the New Lender agrees to become bound by all the terms and conditions of the Finance Documents to which the Existing Lender is a party as a party thereto.
23.2.5. A Transfer will only be effective if the procedure set out in Clause 23.4 (Procedure for transfer) is complied with.
23.2.6. If:
23.2.6.1. a Lender Transfers any of its rights or obligations under the Finance Documents; and
23.2.6.2. as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender under Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased Costs), then the New Lender is only entitled to receive payment under those Clauses to the same extent as the Existing Lender would have been if the Transfer or change had not occurred. This Clause 23.2.6 shall not apply in respect of a Transfer:Transfer made in the ordinary course of the primary syndication of the Facilities.
(a) 23.2.7. Each New Lender, by executing the Tenant and relevant Transfer Certificate, confirms, for the Transferee shall executeavoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be becomes effective in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease Agreement and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding bound by that the Landlord may collect rent from the Transferee;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant decision to the Landlord. If same extent as the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease Existing Lender would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transfereebeen had it remained a Lender.
Appears in 1 contract
Samples: Term and Revolving Credit Facilities Agreement (Sibanye Gold LTD)
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) excluding Transfers resulting from operation of law, the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s a form acceptable to Landlord acting reasonably, including the Transferee’s covenant to be bound by all of the terms provisions of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the TransferLease;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms provisions of this Lease. The Tenant’s and Guarantor’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) herein and notwithstanding that the Landlord may collect rent Rent from the Transferee;
(c) except in connection with Permitted Transfers or a Change of Control, if the basic base rent and additional rent (net of reasonable out of out-of-pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, for cash allowances and for alterations Alterations required by and made for the Transferee by the Tenant, ; amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Base Rent and Additional Rent payable by the Tenant hereunder, then fifty percent (50%) of the amount of such excess shall be paid by the Tenant to the Landlord. If Except in connection with a Permitted Transfer or a Change of Control, if the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic base rent or additional rent for such Transfer, either in the form of cash, goods or services, the then Tenant shall immediately pay to the Landlord an amount equivalent to fifty percent (50%) of such consideration;
(d) that all the subtenant’s right and interest in and to the Premises absolutely terminates upon the termination, surrender, release, disclaimer or merger of this Lease notwithstanding any contrary statutory right or rule of law; and
(e) notwithstanding anything to the contrary contained in this Lease, if the Transfer is results in a subleaseChange of Control of Guarantor due to merger, consolidation or the Transferee will agree purchase of substantially all of Guarantor’s assets, then Landlord’s consent with respect to waive any statutory or other right to apply to a court or to otherwise elect tosuch Change of Control of Guarantor shall not be required if all of the following are satisfied: (i) retain there is no Event of Default under this Lease and Guarantor is not in default under the unexpired term terms of the Lease or the unexpired term of the sublease; Guaranty, (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or Guarantor must give Landlord notice of such Transfer at least fifteen (15) Business Days before such Transfer, (iii) otherwise remain in possession of any portion such Transfer is not a subterfuge for Guarantor to avoid its obligations under the Guaranty, and (iv) Guarantor’s successor shall own all or substantially all of the Premisesassets of Guarantor and shall have a tangible net worth which is at least equal to the greater of Guarantor’s tangible net worth as of the date of this Lease or Guarantor’s tangible net worth as of the day prior to the proposed merger, in any case where the Lease is terminated, surrendered consolidation or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (purchase. Guarantor’s notice to Landlord shall include information and documentation evidencing such Transfer and showing that each of these transactions being referred to as an “Early Termination”) by any trustee the conditions contained in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
this subparagraph (e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transfereebeen satisfied.
Appears in 1 contract
Samples: Industrial Lease (CUI Global, Inc.)
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) If there is permitted Transfer, the Landlord may collect Rent from the Transferee and apply the net amount collected to the Rent payable under this Lease but no acceptance by the Landlord of any payments by a Transferee shall be deemed a waiver or release of the Tenant's covenants, or any acceptance of the Transferee as Tenant, or a release of the Tenant from the further performance by the Tenant of its obligations under this Lease. Any consent by the Landlord shall be subject to the Tenant and the Transferee shall execute, prior to the Transfer being made, executing an agreement with the Landlord in agreeing:
(i) that the Landlord’s form including the Transferee’s covenant to Transferee will be bound by all of the terms of this Lease and to amend the as if such Transferee had originally executed this Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;Tenant; and
(b) notwithstanding Notwithstanding any TransferTransfer permitted or consented to by the Landlord, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;.
(c) if The Landlord's consent to any Transfer shall be subject to the basic conditions that: (i) the Net Rent and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required Additional Rent payable by and made for the Transferee shall not be less than the Net Rent and Additional Rent payable by the Tenant, amortized on a straight line basis over Tenant under this Lease as at the term effective date of the Transfer, (including any increases provided in this Lease), and (ii) if the Net Rent and Additional Rent to be paid by the Transferee under such Transfer exceeds the Basic Net Rent and Additional Rent payable by the Tenant hereunderunder this Lease, the amount of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent Net Rent or additional rent Additional Rent for such Transfer, either in the form of cash, goods or servicesservices (other than the proceeds of any financing as a result of a Transfer involving a mortgage, charge or similar security interest in this Lease) the Tenant shall immediately forthwith pay to the Landlord an amount ================================================================================ equivalent to such consideration;. The Tenant and the Transferee shall execute any agreement required by the Landlord to give effect to the foregoing terms.
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding Notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Net Rent and Additional Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Net Rent and Additional Rent for such month from either the Tenant or the Transferee.
(e) Any document evidencing any Transfer permitted by the Landlord, or setting out any terms applicable to such Transfer or the rights and obligations of the Tenant or Transferee thereunder, shall be prepared by the Landlord or its solicitors and all associated costs shall be paid by the Tenant.
Appears in 1 contract
Samples: Lease Extension Agreement (Avesta Technologies Inc)
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) The consent of each Borrower (or the Tenant and the Transferee shall execute, prior to the Transfer being made, Company acting on behalf of all Borrowers) is required for a transfer by an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;Existing Lender.
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall The consent of a Borrower to a transfer must not be released from performing any of unreasonably withheld or delayed. Each Borrower will be deemed to have given its consent ten Business Days after the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease Existing Lender has requested it unless consent is made (however the original Tenant’s liability will not be increased expressly refused by any amendment that it is not a party to) and notwithstanding Borrower within that the Landlord may collect rent from the Transferee;time.
(c) The consent of a Borrower to a transfer shall not be withheld if the basic and additional rent transfer is:
(net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transferi) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount another Lender or an Affiliate of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either a Lender;
(ii) contemplated in the form Clause 23.7 (Security over Lenders’ rights); or
(iii) made at a time when an Event of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;Default is continuing.
(d) if the Transfer is The consent of a sublease, the Transferee will agree to waive any statutory or other right to apply Borrower to a court or transfer must not be withheld solely because the transfer may result in an increase to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;Mandatory Cost.
(e) if there is an Early Termination, the Tenant and any Transferee Subject to paragraphs (except the bankrupt or insolvent Tenant or Transfereea) to whom (c) above, each Borrower hereby grants an irrevocable power of attorney to the Landlord gives notice within 60 days after Agent to execute each relevant Transfer Certificate on its behalf.
(f) A transfer will only be effective if the Early Termination, shall be considered to have entered into procedure set out in Clause 23.5 (Procedure for transfer) is complied with.
(g) If:
(i) a lease with Lender transfers any of its rights or obligations under the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early TerminationFinance Documents or changes its Facility Office; and
(fii) notwithstanding as a result of circumstances existing at the effective date of any permitted the transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs), then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the transfer or change had not occurred.
(h) Each New Lender, by executing the relevant Transfer as between the Tenant and the TransfereeCertificate, all Rent confirms, for the month in which such effective date occurs shall be paid in advance by the Tenant so avoidance of doubt, that the Landlord will not be required Agent has authority to accept partial payments execute on its behalf any amendment or waiver that has been approved by or on behalf of Rent for such month from either the Tenant requisite Lender or Lenders in accordance with this Agreement on or prior to the Transfereedate on which the transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
Appears in 1 contract
Samples: Facility Agreement (Delhaize Group)
Conditions of Transfer. The following terms (a) If there is a permitted Transfer, the Landlord may accept rent from the transferee and conditions apply in respect the net amount collected to the rent required to be paid pursuant to this Lease, but no acceptance by the Landlord of any payment by the transferee shall be deemed a Transferwaiver of the provisions of Article X hereof or the acceptance of the transferee as tenant or a release of the Tenant from the further performance by the tenant of the covenants or obligations on the part of the Tenant herein contained. Any consent by the Landlord shall be subject to the Tenant executing and causing any such transferee to promptly execute an agreement directly with the Landlord agreeing:
(ai) the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions contained in this Lease as are necessary so that if such transferee had originally executed this Lease as tenant; and
(ii) provided the Landlord is entitled to otherwise withhold its consent, to amend the Lease will be so as to incorporate any conditions imposed by the Landlord in its consent acting reasonably and in accordance with the Landlord’s standard form provisions of lease in use for the Building at the time of the Transfer;this Lease.
(b) notwithstanding Notwithstanding any Transfersuch Transfer permitted or consented to by the Landlord, the Tenant shall remain be jointly and severally liable with the transferee under this Lease and shall not be released from performing any of the terms terms, covenants and conditions of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;.
(c) if the basic and additional rent Intentionally deleted.
(net of reasonable out of pocket costs for improving and subleasing d) Any document or consent evidencing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee Transfer permitted by the Tenant, amortized on a straight line basis over Landlord or setting out any terms applicable to such Transfer or the term rights and obligations of the Transfer) to Tenant or the transferee thereunder, shall be paid prepared by the Transferee under such Transfer exceeds the Basic Rent Landlord or its solicitors, and Additional Rent payable by the Tenant hereunder, the amount of such excess all reasonable legal and other costs with respect thereto shall be paid by the Tenant to the Landlord. If Landlord or its solicitors forthwith upon demand as Additional Rent, together with an administrative fee payable to the Landlord in the amount of Three Hundred Dollars ($300).
(e) Where the Landlord gives its consent to a Transfer, the Tenant receives shall pay forthwith to the Landlord as Additional Rent any consideration (whether profit or otherwise but net of all reasonable out-of-pocket costs incurred by the Tenant in connection therewith) received by the Tenant (in its capacity as assignor, sublessor or transferor) and relating to this Lease and/or the Leased Premises whether directly or indirectly from any Transfereeassignee, either directly sublessee or indirectlytransferee, any consideration other than basic rent or additional rent for such Transfer, either whether in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
Appears in 1 contract
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) If there is a permitted Transfer, the Landlord may collect rent from the transferee and apply the amount collected to the Rent required to be paid pursuant to this Lease, but no acceptance by the Landlord of any payments by the transferee shall be deemed a waiver of the provisions of Article X hereof or the acceptance of the transferee as tenant or a release of the Tenant and from the Transferee further performance by the Tenant of the covenants or obligations on the part of the Tenant herein contained. Where the Landlord's consent to a Transfer is required under Section 10.01, any such consent by the Landlord shall execute, prior be subject to the Transfer being made, Tenant executing and causing any such transferee to promptly execute an agreement directly with the Landlord in the Landlord’s form including the Transferee’s covenant agreeing to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions contained in this Lease (in respect of the Leased Premises, or such portion thereof as are necessary so that was the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time subject of the Transfer;) as if such transferee had originally executed this Lease as tenant.
(b) notwithstanding Notwithstanding any Transfersuch Transfer permitted or consented to by the Landlord, the Tenant and transferee shall remain be jointly and severally liable for the performance of all of the Tenant's obligations under this Lease in respect of the Leased Premises, or such portion thereof as was the subject of such Transfer, and the Tenant shall not be released from performing any of the terms terms, covenants and conditions of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;.
(c) The Tenant agrees that if this Lease is ever disclaimed or terminated in a bankruptcy proceeding relating to a transferee, or if the basic and additional rent (net Landlord terminates this Lease as a result of reasonable out any act or default of pocket costs for improving and subleasing any sub-premisestransferee, leasehold improvementsthe Tenant shall, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required at the Landlord's option exercised by and made for the Transferee by Notice to the Tenant, amortized on enter into a straight line basis over the term new lease of the TransferLeased Premises on terms identical to this Lease for a term commencing on the date which the Landlord exercises its right to require the Tenant to enter into such new lease and expiring upon the date of expiry of this Lease; in such event, the Tenant will accept the Leased Premises in an "as is" condition.
(d) to There shall be paid no prohibition on the rent that may be charged by the Transferee under such Tenant to any transferee, but the Tenant agrees that in respect of any Transfer exceeds permitted hereunder, any rent or other consideration received by the Basic Rent and Additional Tenant which is in excess of the Rent payable by the Tenant hereunderhereunder (after deduction of the Tenant's reasonable costs of the Transfer, including, without limitation, direct leasing costs, tenant allowances or free rent, real estate commissions, legal fees and undepreciated capital costs, based upon a ten (10) year amortization period, for original construction costs incurred by the amount Tenant) shall be shared equally between the Tenant and the Landlord and the Landlord's equal share of such excess shall be payable to the Landlord as Additional Rent on demand.
(e) Any document or consent evidencing any Transfer permitted by the Landlord or setting out any terms applicable to such Transfer or the rights and obligations of the Tenant or the transferee thereunder, shall be prepared by the Landlord or its solicitors, and all reasonable legal and other costs with respect thereto shall be paid by the Tenant to the Landlord. If the Tenant receives from any TransfereeLandlord or its solicitors forthwith upon demand as Additional Rent, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay together with an administrative fee payable to the Landlord an in the amount equivalent to such consideration;
of three hundred dollars (d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee$300).
Appears in 1 contract
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) the Tenant and the Transferee shall execute, prior to the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the TransferLease;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent Rent from the Transferee;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory feesfree rent, real estate feesmarketing, other associated costs, for cash allowances and for alterations Alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, 50 % of the amount of such excess received by the Tenant, shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration (excluding consideration with respect to goodwill and/or the purchase price relating to the Tenant’s assets and/or business) other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord fifty (50%) percent of an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice Notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
Appears in 1 contract
Samples: Lease Agreement (Venus Concept Inc.)
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) If there is a permitted Transfer, the Landlord may collect rent from the Transferee and apply the net amount collected to the Rent payable under this Lease but no acceptance by the Landlord of any payments by a Transferee shall be deemed a waiver of the Tenant's covenants or any acceptance of the Transferee as tenant or a release from the Tenant from the further performance by the Tenant of its obligations under this Lease. Any consent by the Landlord shall be subject to the Tenant and the Transferee shall execute, prior to the Transfer being made, executing an agreement with the Landlord in the Landlord’s form including agreeing that the Transferee’s covenant to , LANDLORD AND TENANT will be bound by all of the terms of this Lease and to amend xxxxxx except in the Lease to incorporate such termscase of a sublease xxxxxxxxxxxxx xxxx xx xx xxxxx xx xx xx xxx xxxxxxxxxx xxxxxxxxx xxx xxxxx xx xxxxxxxx IN WHICH EVENT THE SUBTENANT SHALL BE BOUND BY THE TERMS OF THIS LEASE OTHER THAN RENT, covenants and conditions as are necessary so that the Lease will be in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;TERM AND DEFINITION OF PREMISES
(b) notwithstanding Notwithstanding any TransferTransfer permitted or consented to by the Landlord, the Tenant shall remain liable under this Lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;.
(c) if The Landlord's consent to any Transfer shall be subject to the basic condition that:
(i) the net RENT (EXCEPT IN THE CASE OF A SUBLEASE OF PART OF THE PREMISES IN WHICH CASE THE NET RENTAL RATE SHALL NOT BE LESS THAN THE FAIR MARKET RATE FOR SUBLEASED PREMISES IN DEVELOPMENTS COMPARABLE TO THE DEVELOPMENT) and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required payable by and made for the Transferee shall not be less than the Rent payable by the Tenant, amortized on a straight line basis over Tenant under this Lease as at the term effective date of the Transfer, (including any increases provided for in this Lease); and
(ii) if the net and additional rent to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunderunder this Lease, ONE HALF OF the amount of such excess shall be paid by the Tenant to the Landlord, AFTER FIRST DEDUCTING ALL THE TENANT'S COSTS ASSOCIATED WITH SUCH TRANSFER, INCLUDING, BUT NOT LIMITED TO, LEASEHOLD IMPROVEMENT ALLOWANCES, BROKER COMMISSIONS, COST OF VACANCY AND MARKETING EXPENSES, ALL OF WHICH SHALL BE SUPPORTED BY COPY OF RECEIPTED INVOICES FORWARDED TO THE LANDLORD. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or servicesservices (other than the proceeds of any financing as the result of a Transfer involving a mortgage, charge or similar security interest in this Lease) the Tenant shall immediately forthwith pay to the Landlord an xxxx ONE HALF OF THE amount equivalent to such consideration;consideration AFTER DEDUCTING ASSOCIATED COSTS AS AFORESAID. The Tenant and the Transferee shall execute any agreement required by the Landlord to give effect to the foregoing terms.
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding Notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transferee.
(e) Any document evidencing any Transfer permitted by the Landlord, or setting out any terms applicable to such Transfer or the rights and obligations of the Tenant or Transferee thereunder, shall be prepared by the XXXXXXX TENANT or its solicitors and all associated legal costs shall be paid by the Tenant AND SUCH DOCUMENT SHALL BE SUBJECT TO THE LANDLORD'S REASONABLE APPROVAL. THE LANDLORD OR ITS SOLICITORS SHALL PREPARE, AT THE TENANT'S EXPENSE, ANY CONSENT DOCUMENT WITH RESPECT TO SUCH TRANSFER.
Appears in 1 contract
Conditions of Transfer. The following terms and conditions apply in respect of a Transfer:
(a) If there is a permitted Transfer, the Landlord may collect rent from the Transferee and apply the net amount collected to the Rent payable under this lease but no acceptance by the Landlord of any payments by a Transferee shall be deemed a waiver of the Tenant's covenants or any acceptance of the Transferee as tenant or a release from the Tenant from the further performance by the Tenant of its obligations under this lease. Any consent by the Landlord shall be subject to the Tenant and the Transferee shall execute, prior to the Transfer being made, executing an agreement with the Landlord in agreeing that the Landlord’s form including the Transferee’s covenant to Transferee will be bound by all of the terms of this Lease and to amend lease and, except in the Lease to incorporate such termscase of a sublease, covenants and conditions as are necessary so that the Lease Transferee will be in accordance with the Landlord’s standard form of so bound as if it had originally executed this lease in use for the Building at the time of the Transfer;as tenant.
(b) notwithstanding Notwithstanding any TransferTransfer permitted or consented to by the Landlord, the Tenant shall remain liable under this Lease lease and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding that the Landlord may collect rent from the Transferee;lease.
(c) The Landlord's consent to any Transfer shall be subject to the condition that if the basic net rent and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Net Rent and Additional Rent payable by the Tenant hereunderunder this lease, the amount of such excess shall be paid by the Tenant to the Landlord. If the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic net rent or additional rent for such Transfer, either in the form of cash, goods or servicesservices (other than the proceeds of any financing as the result of a Transfer involving a mortgage, charge or similar security interest in this lease) the Tenant shall immediately forthwith pay to the Landlord an amount equivalent to such consideration;. The Tenant and the Transferee shall execute any agreement required by the Landlord to give effect to the foregoing terms.
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease would have expired but for the Early Termination; and
(f) notwithstanding Notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Net Rent and Additional Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Net Rent and Additional Rent for such month from either the Tenant or the Transferee.
Appears in 1 contract
Conditions of Transfer. (1) The following consent of the Borrower is not required for a Transfer by an Existing Lender to any Permitted Transferee, or to any other prospective transferee whilst an Event of Default is continuing. The consent of the Borrower is required for a Transfer to any other prospective transferee, other than a Permitted Transferee, whilst there is no Event of Default continuing.
(2) Where the consent of the Borrower to a Transfer is required in terms of clause 25.2(1) above, that consent must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
(3) A Transfer will only be effective if the procedure set out in clause 25.4 (Procedure for Transfer) is complied with.
(4) If:
(a) a Lender Transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the new Lender or Lender acting through its new Facility Office under clause 14 (Tax gross up and conditions indemnities) or clause 15 (Increased costs), then the new Lender or Lender acting through its new Facility Office is only entitled to receive payment under those clauses to the same extent as the Existing Lender or Lender acting through its new Facility Office would have been if the Transfer or change had not occurred. This clause 25.2(4) shall not apply in respect of a Transfer:Transfer made in the primary syndication of the Facility.
(a5) Each new Lender, by executing the Tenant and relevant Transfer Certificate confirms, for the Transferee shall executeavoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer being made, an agreement with the Landlord in the Landlord’s form including the Transferee’s covenant to be bound by all of the terms of this Lease and to amend the Lease to incorporate such terms, covenants and conditions as are necessary so that the Lease will be becomes effective in accordance with the Landlord’s standard form of lease in use for the Building at the time of the Transfer;
(b) notwithstanding any Transfer, the Tenant shall remain liable under this Lease Agreement and shall not be released from performing any of the terms of this Lease. The Tenant’s liability shall continue notwithstanding any amendment of this Lease throughout the Term and any exercise of any renewal or extension of the Term provided for herein, regardless of whether or when an amendment of this Lease is made (however the original Tenant’s liability will not be increased by any amendment that it is not a party to) and notwithstanding bound by that the Landlord may collect rent from the Transferee;
(c) if the basic and additional rent (net of reasonable out of pocket costs for improving and subleasing any sub-premises, leasehold improvements, demising costs, commissions, professional advisory fees, real estate fees, other associated costs, cash allowances and for alterations required by and made for the Transferee by the Tenant, amortized on a straight line basis over the term of the Transfer) to be paid by the Transferee under such Transfer exceeds the Basic Rent and Additional Rent payable by the Tenant hereunder, the amount of such excess shall be paid by the Tenant decision to the Landlord. If same extent as the Tenant receives from any Transferee, either directly or indirectly, any consideration other than basic rent or additional rent for such Transfer, either in the form of cash, goods or services, the Tenant shall immediately pay to the Landlord an amount equivalent to such consideration;
(d) if the Transfer is a sublease, the Transferee will agree to waive any statutory or other right to apply to a court or to otherwise elect to: (i) retain the unexpired term of the Lease or the unexpired term of the sublease; (ii) obtain any right to enter into any lease or other agreement directly with the Landlord; or (iii) otherwise remain in possession of any portion of the Premises, in any case where the Lease is terminated, surrendered or otherwise cancelled, including, without limitation, any disclaimer, repudiation, surrender or other termination (each of these transactions being referred to as an “Early Termination”) by any trustee in bankruptcy of the Tenant or a Transferee, by any court appointed officer, or by the Tenant or a Transferee in connection with any insolvency proceedings;
(e) if there is an Early Termination, the Tenant and any Transferee (except the bankrupt or insolvent Tenant or Transferee) to whom the Landlord gives notice within 60 days after the Early Termination, shall be considered to have entered into a lease with the Landlord on the same terms and conditions as are contained in this Lease except that the term of the lease shall commence on the date of the Early Termination and shall expire on the date this Lease Existing Lender would have expired but for the Early Termination; and
(f) notwithstanding the effective date of any permitted Transfer as between the Tenant and the Transferee, all Rent for the month in which such effective date occurs shall be paid in advance by the Tenant so that the Landlord will not be required to accept partial payments of Rent for such month from either the Tenant or the Transfereebeen had it remained a Lender.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Harmony Gold Mining Co LTD)
