Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party. (a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”). (b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c). (c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply. (d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 2 contracts
Samples: Deed of Lease, Comprehensive Agreement
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b) pursuant to the terms and conditions of this Article 10or (c), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such election and shall first offer to transfer space, (ii) (A) in the Proposed Transfer Premises to Landlord or an Affiliate case of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in a proposed assignment, Tenant’s sole good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Tenant’s good faith offer of the fixed annual rent which Tenant desires to receive for such proposed subletting (assuming that a subtenant will pay for Taxes, Operating Expenses and absolute discretion electricity in the same manner, and utilizing the same base year or base amount, as Tenant pays for such amounts under this Lease) and (iii) the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (proposed assignment or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In Tenant’s Offer Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at Landlord’s option, (i) sublease such space from Tenant (if the event that proposed transaction is a sublease of all or part of the Offer Premises), (ii) have this Lease assigned to it or terminate this Lease (if the proposed transaction is accepted an assignment or a sublease of all or substantially all of the Premises or a sublease of a portion of the Premises which, when aggregated with other subleases then in effect, covers all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises). Said option may be exercised by Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises by notice to Tenant within sixty thirty (6030) days after the a Tenant’s Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance Notice, together with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises all information required pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect 5.02(a), has been given by Tenant to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Landlord.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer is not accepted by Notice and all Rent shall be paid and apportioned to such date.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an assignment in form and substance reasonably satisfactory to Landlord, effective on the date that is the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer Notice. Tenant shall not be entitled to consideration or payment from Landlord (or Landlord’s designee) in connection with any such assignment. If the Tenant’s Offer Notice provides that Tenant will pay any consideration or grant any concessions in connection with the proposed assignment or sublease, then Tenant shall pay such consideration and/or grant any such concessions to Landlord (or Landlord’s designee) on the date Tenant assigns this Lease to Landlord (or Landlord’s designee).
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove providedsublease, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: then (i) ninety-five percent (95%) this Lease shall terminate with respect to such part of the sale price Premises on the effective date of the proposed sublease; (ii) from and after such date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises and (iii) Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease or (ii) the rental set forth in the applicable Tenant’s Offer Terms if Landlord did not make a CounterofferNotice with respect to such sublet space, or and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(2A) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(C) shall permit the sublessee, without Tenant’s consent, freely to assign such sublease or any interest therein or to sublet all or any part of the space covered by such sublease and to make any and all alterations and improvements in the space covered by such sublease;
(D) shall provide that any assignee or further subtenant of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease, provided that such assignee or subtenant, at its expense, shall repair any damage caused by such removal; and
(E) shall provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise, and (4) at the expiration of the term of such sublease, Tenant shall accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve such space in good order and condition.
(g) In the case of a proposed sublease, (I) Tenant shall not sublet any space to a third party at a rental which is less (on a per rentable square foot basis) than the rental (on a per rentable square foot basis) specified in Tenant’s Offer Notice with respect to such space, without complying once again with all of the provisions of this Section 10.03. If 5.02 and reoffering such space to Landlord at such lower rental, and (II) if the proposed sublease does not become effective within 180 days after Landlord has consented thereto, Tenant is required to shall comply once again with all of the provisions of this Section 5.02 and re-offer the Proposed Transfer Premises such space to Landlord during (whether or not Landlord had granted its consent to such nine transaction). In the case of a proposed assignment, (9I) month periodTenant shall not assign this Lease to a third party where Tenant pays 5% or more greater consideration or grants a 5% or more greater concession to such third party for such assignment than the consideration offered to be paid or concession offered to be granted to Landlord in Tenant’s Offer Notice, or receives consideration from such third party for such assignment that is 95% or less than the procedures consideration offered to be paid by Landlord in subsections 10.03(a) Tenant’s Offer Notice, in each case without complying once again with all of the provisions of this Section 5.02 and re-offering to assign this Lease to Landlord and pay such consideration or grant such concession to Landlord, and (bII) if the proposed assignment does not become effective within 180 days after Landlord has consented thereto, Tenant shall apply.
(d) The Landlord’s right comply once again with all of first offer set out in the provisions of this Section 10.03 is intended 5.02 and re-offer such space to apply only Landlord (whether or not Landlord had granted its consent to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premisestransaction).
Appears in 2 contracts
Samples: Lease (Y-mAbs Therapeutics, Inc.), Lease (Y-mAbs Therapeutics, Inc.)
Landlord’s Right of First Offer. Subject (a) If Tenant desires to enter into an Assignment of this Lease or Sublease all or part of the Premises (other than in accordance with Section 5.01(b), 5.01(c) or 5.01(d)), Tenant shall give to Landlord notice (“Tenant’s Offer Notice”) thereof, and subordinate to Section 10.01(knotice shall be accompanied by (i) abovea conformed or photostatic copy of the proposed Assignment or Sublease and all related agreements, or a letter of intent containing all of the material economic terms of the proposed Assignment or Sublease and executed by the proposed Assignee or Sublessee and, in either case the event Tenant would like to make effective or commencement date (the “Effective Date”) of the proposed Assignment or Sublease shall be at least 45 days after the giving of such notice, (ii) a Permitted Transfer statement setting forth in reasonable detail the identity of the proposed Assignee or Sublessee, the nature of its business and its proposed use of the Premises, (iii) current financial information with respect to the proposed Assignee or Sublessee, including, without limitation, its most recent certified financial statements, if such financial statements are certified (or, if not, certified by the chief financial officer of the proposed Assignee or Sublessee as being true and correct) and (iv) if the proposed transaction is an Assignment or a Sublease of all or any a portion of the Premises for a term equal to 7 years or more or for substantially all of the then remaining balance of the Term (without giving effect to any unexercised Renewal Option), a good faith estimate of the “Proposed Transfer Premises”) amount that Landlord would be required to pay to Tenant pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer 5.02 on account of any Unamortized Initial Alteration Costs and Unamortized Subsequent Alteration Costs, assuming that the applicable Determination Date was the Effective Date of the proposed Assignment or Sublease, as the case may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)be.
(b) In If the event that proposed transaction is an Assignment or a Sublease of all or a portion of the Premises for a term equal to 7 years or more or for substantially all of the then remaining balance of the Term (without giving effect to any unexercised Renewal Option), Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) Sublease such space from Tenant (if the proposed transaction is a counteroffer Sublease of all or part of the Premises for a term that is equal to 7 years or more or for substantially all of the then remaining balance of the Term, without giving effect to any unexercised Renewal Option), (“Counteroffer”ii) setting forth have this Lease assigned to it (if the price and proposed transaction is an Assignment or a Sublease of all or substantially all of the Premises or a Sublease of a portion of the Premises which, when aggregated with other material terms on which Landlord would be willing to purchase Subleases then in effect, covers all or substantially all of the Proposed Transfer Premises; provided, that if the proposed transaction is a Sublease of a portion of the Premises which, when aggregated with other Subleases then in effect, covers all or substantially all of the Premises, but such assignment to Landlord shall be subject to such other Subleases then in effect) or terminate this Lease (if the proposed transaction is an Assignment or a Sublease of all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a Sublease of part of the Premises for a term that is equal to all or substantially all of the then remaining balance of the Term of this Lease, without giving effect to any unexercised Renewal Option). Said option may be exercised by Landlord by notice to Tenant within 30 days after a Tenant’s Offer Notice, together with all information required pursuant to Section 5.02(a), has no obligation been given by Tenant to accept or otherwise address Landlord. For the purpose hereof; “substantially all of the then remaining balance of the Term” shall mean that, at the conclusion of the term of the proposed sublease, less than 18 months shall remain with respect to the Term (without giving effect to any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(cunexercised Renewal Options).
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the Offer is not accepted by Landlord (Effective Date of the proposed Assignment or a proposed Counteroffer is not accepted by Tenant) Sublease specified in the manner hereinabove providedapplicable Tenant’s Offer Notice and all Rent shall be paid and apportioned to such date. Landlord shall pay to Tenant, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months 30 days after the last day Effective Date of the Offer Periodproposed Assignment or Sublease, provided that the terms of any such Transfer of the Proposed Transfer Premises an amount equal to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five seventy percent (9570%) of the sale price sum of (1) the excess of (x) the Unamortized Initial Alteration Costs as of the Effective Date over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Initial Alteration Costs in connection with any prior proposed Assignments or Subleases, plus (2) the excess of (x) the Unamortized Subsequent Alteration Costs as of the Effective Date with respect to each subsequent Alteration over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Subsequent Alteration Costs for each such subsequent Alteration in connection with any prior proposed Assignments or Subleases; provided, however, in no event shall Landlord be obligated to pay to Tenant pursuant to this sentence more than the amount of profit to which Tenant would have been entitled, if any, pursuant to Section 5.05 hereof had Tenant entered into the proposed Assignment or Sublease in question. Tenant shall not be entitled to any other consideration or payment from Landlord (or Landlord’s designee) in connection with any such termination.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an Assignment in form and substance reasonably satisfactory to Landlord, effective on the Effective Date of the proposed Assignment or Sublease specified in the applicable Tenant’s Offer Notice, and Landlord shall pay to Tenant, within 90 days after the Effective Date of the proposed Assignment or Sublease, the amount, if any, calculated pursuant to the penultimate sentence of Section 5.02(c) above. Tenant shall not be entitled to any other consideration or payment from Landlord (or Landlord’s designee) in connection with any such Assignment. Upon the consummation of any such Assignment to Landlord or its designee, Tenant shall be released from any obligations accruing under this Lease from and after the date of such Assignment.
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Sublease, then (i) this Lease shall terminate with respect to such part of the Premises on the Effective Date of the proposed Sublease specified in the applicable Tenant’s Offer Notice; (ii) from and after such date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises; (iii) Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise; and (iv) Landlord shall pay to Tenant, within 30 days after the Effective Date of the proposed Sublease, an amount equal to seventy percent (70%) of the product of (A) the sum of (1) the excess of (x) the Unamortized Initial Alteration Costs as of the Effective Date over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Initial Alteration Costs in connection with any prior proposed Assignments or Subleases, plus (2) the excess of (x) the Unamortized Subsequent Alteration Costs as of the Effective Date with respect to each subsequent Alteration over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Subsequent Alteration Costs for each such subsequent Alteration in connection with any prior proposed Assignments or Subleases, multiplied by (B) a fraction, the numerator of which is the rentable square footage of the portion of the Premises so terminated, and the denominator of which is the total rentable square footage of the Premises; provided, however, in no event shall Landlord be obligated to pay to Tenant pursuant to this sentence more than the amount of profit to which Tenant would have been entitled, if any, pursuant to Section 5.05 hereof had Tenant entered into the proposed Sublease in question.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to Sublease, such Sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii) the rental set forth in the applicable Tenant’s Offer Terms if Notice with respect to such sublet space, and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(A) shall provide that Landlord did not make a Counteroffershall pay to Tenant, or (2) one hundred within 30 days after the Effective Date of the proposed Sublease, an amount equal to seventy percent (10070%) of the product of (A) the sum of (1) the excess of (x) the Unamortized Initial Alteration Costs as of the Effective Date over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Initial Alteration Costs in connection with any prior proposed Assignments or Subleases, plus (2) the excess of (x) the Unamortized Subsequent Alteration Costs as of the Effective Date with respect to each subsequent Alteration over (y) the aggregate of all amounts theretofore paid by Landlord to Tenant for the Unamortized Subsequent Alteration Costs for each such subsequent Alteration in connection with any prior proposed Assignments or Subleases, multiplied by (B) a fraction, the numerator of which is the rentable square footage of the portion of the Premises so sublet, and the denominator of which is the total rentable square footage of the Premises, multiplied by (C) a fraction, the numerator of which is the number of months in the Sublease at issue and the denominator of which is the number of months in the period from the Effective Date of such Sublease to the Expiration Date of the initial Term of this Lease; provided, however, in no event shall Landlord be obligated to pay to Tenant pursuant to this sentence more than the amount of profit to which Tenant would have been entitled, if any, pursuant to Section 5.05 hereof had Tenant entered into the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine proposed Sublease in question.
(9B) month period, such Transfer shall again be subject to all of the terms and conditions of this Section 10.03. If Tenant is required Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out contrary in this Section 10.03 is intended to apply only 5.02(f);
(C) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the sale contrary in this Section 5.02(f);
(D) shall permit the Sublessee, without Tenant’s consent, freely to enter into an Assignment of such Sublease or any interest therein or to Sublease all or any part of the Proposed Transfer Premises space covered by such Sublease and to make any and all alterations and improvements in the space covered by such Sublease (it being understood that Tenant shall not be responsible to remove any Fixtures pursuant to Section 4.02(d) hereof which are installed by, or for any default under this Lease to the extent directly caused by the act or omission of Landlord or its designee (or the sub-Sublessee) as the sublessee under such Sublease);
(E) shall provide that any Assignee or further Sublessee of Landlord or its designee may, at the election of Landlord, make alterations, decorations and is not intended installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such Assignee or Sublessee, at its option, prior to apply or upon the expiration or other termination of such sublease, provided that such Assignee or Sublessee, at its expense, shall repair any damage caused by such removal;
(F) shall provide that (1) the parties to a Mortgagee such Sublease expressly negate any intention that any estate created under such Sublease be merged with any other estate held by either of said parties, (2) any Assignment or another purchaser Sublease by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the Subleased space and to comply with any Laws relating to such demise, and (4) at the expiration of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu term of such foreclosureSublease, which is not Tenant shall accept the space covered by such Sublease in its then existing condition, subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser obligations of the Premises pursuant Sublessee to a foreclosure of a Mortgage acquires this Lease make such repairs thereto as may be necessary to preserve such space in good order and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.condition; and
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in the event if Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall will promptly give Landlord notice of such election and shall will first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) party. Tenant shall will offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall will be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event . If that the Offer is accepted by the Landlord during the Offer Period, Landlord shall will close on the Proposed Transfer Premises within sixty (60) 60 days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that if such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall will be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall will execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that If Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall will close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) . If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) % of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) % of the amount of the Counteroffer price if a Counteroffer was made). In the event that If the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) nine- month period, such Transfer shall will again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) nine-month period, the procedures in subsections 10.03(a) and (b) shall will apply.
(d) . The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event if such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall will apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Samples: Deed of Lease
Landlord’s Right of First Offer. Subject and subordinate If at any time during the Term, Tenant desires to Section 10.01(k) above, Transfer Tenant's interest in the event Tenant would like Premises under this Lease (other than a Transfer for security purposes pursuant to make a Permitted Transfer Leasehold Mortgage or a foreclosure or deed in lieu of foreclosure with respect to all a Leasehold Mortgage, or a subletting in accordance with Article 18 or any portion of the Premises transfer permitted under Section 17.2), Tenant shall first deliver to Landlord a written offer (the “Proposed Transfer Premises”"OFFER") pursuant to setting forth the terms and conditions of this Article 10, upon which Tenant shall promptly give Landlord notice of such election proposes to Transfer its interest and shall first offer offering to transfer Transfer Tenant's interest in the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the on such terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to and conditions, provided that if such terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is conditions do not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Periodrequire cash payment, Landlord shall close on have the Proposed Transfer Premises within sixty (60) days after option of purchasing the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c)interest for all cash. Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms have ten (10) calendar days from Landlord's receipt of the Offer and this Section 10.03to accept the Offer by written notice to Tenant. In the event that If Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but give Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If written notice accepting the Offer is not accepted by Landlord within said ten (or a proposed Counteroffer is not accepted by Tenant10) in the manner hereinabove providedday period, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Periodtime, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (whichthereafter, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the conditions, restrictions and terms of this Section 10.03. If Tenant is required Article 17, Transfer its interest to re-offer a third party on any terms, regardless of whether more or less favorable than those stated in the Proposed Transfer Premises Offer, without reoffering the interest to Landlord during such nine (9) month period, Landlord; provided that the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right provisions of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 17.7 shall apply to any future attempted subsequent Transfer. If Landlord accepts the Offer, Landlord and Tenant shall consummate the Transfer within thirty (30) days after Landlord's written notice of this acceptance. The Transfer shall be consummated by Tenant's delivery to Landlord of (i) a good and sufficient assignment of lease, in recordable form, assigning to Landlord, free and clear of any and all liens, subleases, and encumbrances except those caused by Landlord or those that, by accepting the Offer, Landlord has agreed to take subject to, all of Tenant's right, title and interest in, to and under the Lease and in any and all Permitted Subleases that, by accepting the Offer, Landlord has agreed to accept, and (ii) a good and sufficient (warranty as to title, or Proposed as otherwise specified in the Offer) xxxx of sale of any personal property included in the leasehold estate being acquired by Landlord. Landlord shall pay the consideration agreed upon in cash at the closing of the Transfer Premisesor otherwise in the manner specified in the Offer.
Appears in 1 contract
Samples: Lease (Genencor International Inc)
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b), (c) pursuant to the terms and conditions of this Article 10(d), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such election space, (ii) (A) in the case of a proposed assignment, Xxxxxx’s good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Xxxxxx’s good faith offer of the annual rental (taking into account all relevant factors, including any free rent periods and shall first offer construction allowances and unless otherwise indicated assuming that a subtenant will pay for Taxes, Operating Expenses and electricity in the same manner, and utilizing the same base year or base amount, as Tenant pays for such amounts under this Lease) which Tenant desires to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer receive for such proposed subletting (the “OfferSublet Rent”) to transfer to Landlord and (iii) the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (proposed assignment or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In Tenant’s Offer Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at Landlord’s option, (i) sublease such space from Tenant (if the event that proposed transaction is a sublease of all or part of the Offer Premises), or (ii) have this Lease assigned to it or terminate this Lease (if the proposed transaction is accepted an assignment or a sublease of all or substantially all of the Premises). Said option may be exercised by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises by notice to Tenant within sixty twenty (6020) days after the a Tenant’s Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance Notice, together with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises all other information required pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect 5.02(a), has been given by Xxxxxx to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Landlord.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer is not accepted by Notice and all Rent shall be paid and apportioned to such date.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or a Landlord’s designee) by an assignment in form and substance reasonably satisfactory to Landlord and Tenant, effective on the proposed Counteroffer is not accepted by Tenant) assignment or sublease commencement date specified in the manner hereinabove providedapplicable Tenant’s Offer Notice. On such effective date, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after appropriate party shall pay to the last day other 50% of the consideration, if any, specified in Tenant’s Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms Notice (whichless, in the case of pricepayment of such consideration from Tenant to Landlord, means that the sale price is not less than: (i) ninety-five percent (95%) 50% of the sale price costs referred to in Section 5.05(b)(i)-(iii)). If Tenant assigns this Lease to Landlord or Landlord’s designee, then Tenant shall have no further liability under this Lease which arise from and after the effective date of such assignment.
(e) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord and Tenant at the rental set forth in the applicable Tenant’s Offer Terms Notice with respect to such sublet space, and shall be for the term set forth in the applicable Tenant’s Offer Notice (provided, that if the Sublet Rent is greater than Tenant’s Qualified Sublet Cost, then the rent which Landlord did (or its designee) is required to pay to Tenant in respect of the sublet space shall be reduced by an amount equal to 50% of the amount by which the Sublet Rent exceeds Tenant’s Qualified Sublet Cost. For purposes of this Section 5.02(e), “Tenant’s Qualified Sublet Cost” for any sublet space subleased to Landlord (or its designee) in accordance with this Section 5.02 means the sum of (1) the portion of the annual Fixed Rent (and Tax Payments and Operating Payments, but only if the subtenant is not make a Counterofferpaying Taxes and Operating Expenses in the same manner and using the same base year and base amount as Tenant pays for such amounts under this Lease) which is attributable to such sublet space, or plus (2) one hundred percent the costs referred to in Section 5.05(a)(iii) and (100%v) of plus (3) the amount of any reasonable brokerage commissions and reasonable legal fees paid by Tenant in connection with the Counteroffer price if sublease amortized on a Counteroffer was made). In straight-line basis over the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all term of the terms sublease, plus (4) the cost of electricity for such sublet space at the rate payable by the Tenant under this Section 10.03Lease if the subtenant is paying for electricity on a rent inclusion basis. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month periodFurther, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.sublease:
Appears in 1 contract
Samples: Lease (LEM America, Inc)
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b) pursuant to the terms and conditions of this Article 10or (c), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such election space, (ii) (A) in the case of a proposed assignment, Txxxxx’s good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Txxxxx’s good faith offer of the fixed annual rent which Tenant desires to receive for such proposed subletting (assuming that a subtenant will pay for Taxes, Operating Expenses and shall first offer to transfer electricity in the Proposed Transfer Premises to Landlord same manner, and utilizing the same base year or an Affiliate of Landlord pursuant to base amount, as Tenant pays for such amounts under this Lease) and (iii) the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to proposed assignment or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In the event that the Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) sublease such space from Tenant (if the proposed transaction is a counteroffer sublease of all or part of the Premises), (“Counteroffer”ii) setting forth have this Lease assigned to it or terminate this Lease (if the price and proposed transaction is an assignment or a sublease of all or substantially all of the Premises or a sublease of a portion of the Premises which, when aggregated with other material terms on which subleases then in effect, covers all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises). Said option may be exercised by Landlord would be willing by notice to purchase the Proposed Transfer PremisesTenant within 60 days after a Tenant’s Offer Notice, but together with all information required pursuant to Section 5.02(a), has been given by Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Landlord.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer is not accepted by Notice and all Rent shall be paid and apportioned to such date.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an assignment in form and substance reasonably satisfactory to Landlord, effective on the date that is the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer Notice. Tenant shall not be entitled to consideration or payment from Landlord (or Landlord’s designee) in connection with any such assignment. If the Tenant’s Offer Notice provides that Tenant will pay any consideration or grant any concessions in connection with the proposed assignment or sublease, then Tenant shall pay such consideration and/or grant any such concessions to Landlord (or Lxxxxxxx’s designee) on the date Tenant assigns this Lease to Landlord (or Landlord’s designee).
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove providedsublease, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: then (i) ninety-five percent (95%) this Lease shall terminate with respect to such part of the sale price Premises on the effective date of the proposed sublease; (ii) from and after such date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises and (iii) Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease or (ii) the rental set forth in the applicable Tenant’s Offer Terms if Landlord did not make a CounterofferNotice with respect to such sublet space, or and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(2A) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(C) shall permit the sublessee, without Tenant’s consent, freely to assign such sublease or any interest therein or to sublet all or any part of the space covered by such sublease and to make any and all alterations and improvements in the space covered by such sublease;
(D) shall provide that any assignee or further subtenant of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease, provided that such assignee or subtenant, at its expense, shall repair any damage caused by such removal; and
(E) shall provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise, and (4) at the expiration of the term of such sublease, Tenant shall accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve such space in good order and condition.
(g) In the case of a proposed sublease, Tenant shall not sublet any space to a third party at a rental which is less (on a per rentable square foot basis) than the rental (on a per rentable square foot basis) specified in Tenant’s Offer Notice with respect to such space, without complying once again with all of the provisions of this Section 10.03. If Tenant is required to 5.02 and re-offer the Proposed Transfer Premises offering such space to Landlord during at such nine (9) month periodlower rental. In the case of a proposed assignment, Txxxxx shall not assign this Lease to a third party where Tenant pays greater consideration or grants a greater concession to such third party for such assignment than the procedures consideration offered to be paid or concession offered to be granted to Landlord in subsections 10.03(a) and (b) shall apply.
(d) The LandlordTenant’s right Offer Notice, or receives less consideration from such third party for such assignment than the consideration offered to be paid by Landlord in Tenant’s Offer Notice, in each case without complying once again with all of first offer set out in the provisions of this Section 10.03 is intended 5.02 and re-offering to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires assign this Lease to Landlord and becomes a “Tenant” hereunder, this Section 10.03 shall apply pay such consideration or grant such concession to any future attempted Transfer of this Lease or Proposed Transfer PremisesLandlord.
Appears in 1 contract
Samples: Lease (FaceBank Group, Inc.)
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b) pursuant to the terms and conditions of this Article 10or (c), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such election and shall first offer to transfer space, (ii) (A) in the Proposed Transfer Premises to Landlord or an Affiliate case of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in a proposed assignment, Tenant’s sole good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Tenant’s good faith offer of the fixed annual rent that Tenant desires to receive for such proposed subletting (assuming that a subtenant will pay for Taxes, Operating Expenses and absolute discretion electricity in the same manner, and utilizing the same base year or base amount, as Tenant pays for such amounts under this Lease) and (iii) the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (proposed assignment or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In the event that the Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) sublease such space from Tenant (if the proposed transaction is a counteroffer sublease of all or part of the Premises), (“Counteroffer”ii) setting forth have this Lease assigned to it or terminate this Lease (if the price and proposed transaction is an assignment or a sublease of all or substantially all of the Premises or a sublease of a portion of the Premises that, when aggregated with other material terms on which subleases then in effect, covers all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises). Said option may be exercised by Landlord would be willing by notice to purchase the Proposed Transfer PremisesTenant within 30 days after a Tenant’s Offer Notice, but together with all information required pursuant to Section 5.02(a), has been given by Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Landlord.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer is not accepted by Notice and all Rent shall be paid and apportioned to such date.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an assignment in form and substance reasonably satisfactory to Landlord, effective on the date that is the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer Notice. Tenant shall not be entitled to consideration or payment from Landlord (or Landlord’s designee) in connection with any such assignment. If the Tenant’s Offer Notice provides that Tenant will pay any consideration or grant any concessions in connection with the proposed assignment or sublease, then Tenant shall pay such consideration and/or grant any such concessions to Landlord (or Landlord’s designee) on the date Tenant assigns this Lease to Landlord (or Landlord’s designee).
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Counteroffer is not accepted by Tenantsublease, then (i) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day this Lease shall terminate with respect to such part of the Premises on the effective date of the proposed sublease; (ii) from and after such date the Fixed Rent and Additional Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises; (iii) if Tenant’s Offer Period, Notice provided that the terms of any space covered by the proposed sublease would be separately demised, Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in demising separately such Transfer part of the Proposed Transfer Premises and in complying with any Laws relating to such third party are substantially demise, unless the same as the applicable Tenant’s Offer Terms (which, in the case of price, means Notice states that the sale price is proposed subtenant shall be responsible for the cost of such demising work in which case Tenant shall not less than: be obligated to make such payment to Landlord; and (iv) Tenant’s Share shall be appropriately adjusted.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) ninety-five percent the rental rate per rentable square foot of Fixed Rent and Additional Rent then payable pursuant to this Lease or (95%ii) of the sale price rental set forth in the applicable Tenant’s Offer Terms if Landlord did not make a CounterofferNotice with respect to such sublet space, or and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(2A) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(C) shall permit the sublessee, without Tenant’s consent, freely to assign such sublease or any interest therein or to sublet all or any part of the space covered by such sublease and to make any and all alterations and improvements in the space covered by such sublease;
(D) shall provide that any assignee or further subtenant of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such assignee or subtenant, at its option (and, unless Tenant agrees otherwise, shall be removed in the case of a sublease for less than substantially all of the remaining Term), prior to or upon the expiration or other termination of such sublease; provided, that such assignee or subtenant, at its expense, shall repair any damage caused by such removal; and
(E) shall provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise, unless the applicable Tenant’s Offer Notice states that the proposed subtenant shall be responsible for the cost of such demising work in which case such work shall be performed at Landlord’s cost, and (4) at the expiration of the term of such sublease, Tenant shall accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve such space in good order and condition.
(g) In the case of a proposed sublease, Tenant shall not sublet any space to a third party at a rental that is less (on a per rentable square foot basis) than the rental (on a per rentable square foot basis) specified in Tenant’s Offer Notice with respect to such space, without complying once again with all of the provisions of this Section 10.03. If Tenant is required to 5.02 and re-offer the Proposed Transfer Premises offering such space to Landlord during at such nine (9) month periodlower rental. In the case of a proposed assignment, Tenant shall not assign this Lease to a third party where Tenant pays greater consideration or grants a greater concession to such third party for such assignment than the procedures consideration offered to be paid or concession offered to be granted to Landlord in subsections 10.03(a) and (b) shall apply.
(d) The LandlordTenant’s right Offer Notice, or receives less consideration from such third party for such assignment than the consideration offered to be paid by Landlord in Tenant’s Offer Notice, in each case without complying once again with all of first offer set out in the provisions of this Section 10.03 is intended 5.02 and re-offering to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires assign this Lease to Landlord and becomes a “Tenant” hereunder, this Section 10.03 shall apply pay such consideration or grant such concession to any future attempted Transfer of this Lease or Proposed Transfer PremisesLandlord.
Appears in 1 contract
Samples: Lease (Justworks, Inc.)
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) party. Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) . In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) . If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) . The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Samples: Deed of Lease
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b), (c) pursuant to the terms and conditions of this Article 10or (d)), Tenant shall promptly give to Landlord notice ("Tenant's Offer Notice") thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet (the "Sublet Space") and the term of the subletting of such election Sublet Space (the "Sublet Term"), (ii) (A) in the case of a proposed assignment, Tenant's good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Tenant's good faith offer of the fixed annual rent which Tenant desires to receive for such proposed subletting (assuming that a subtenant will pay for Taxes, Operating Expenses and shall first offer electricity in the same manner, and utilizing the same base year or base amount, as Tenant pays for such amounts under this Lease) (the "Sublet Rent"), (iii) in the case of a proposed subletting involving a partial floor, whether or not Tenant intends to transfer demise separately the Proposed Transfer Premises to Landlord subleased space or provide an Affiliate of Landlord pursuant allowance to the terms subtenant for the purpose of this Section 10.03. Such offer may be made by Tenant to Landlord prior to performing such work and (iv) the time Tenant has made an offer to proposed assignment or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In Landlord (or its designee) shall have the event option, exercisable by notice ("Landlord's Acceptance Notice") given to Tenant on or before the date that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) 15 days after the giving of the applicable Tenant's Offer is accepted Notice (or such longer time as is agreed to by of the parties in writingessence) (i) in accordance with the Offer Terms; provided howevercase of a proposed assignment, that to have this Lease assigned to it or (ii) in the event that such closing does not occur within such period as a result case of a default by Landlord after acceptanceproposed sublease, then Tenant shall be entitled to Transfer sublet the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Sublet Space from Tenant.
(c) If the Offer is not accepted by Landlord exercises its option under Section 5.02)(b)(i) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or a Landlord's designee) by an assignment in form and substance reasonably satisfactory to Landlord and Tenant, effective on the proposed Counteroffer is not accepted by Tenant) assignment commencement date specified in the manner hereinabove providedapplicable Tenant's Offer Notice. On such effective date, Tenant may transfer the Proposed Transfer Premises at any time within nine appropriate party shall pay to the other the consideration for such assignment specified in Tenant's Offer Notice.
(9d) months after If Landlord exercises its option under Section 5.02(b)(ii) to sublet the last day of the Offer PeriodSublet Space, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: then (i) ninety-five percent during the Sublet Term, Tenant shall be relieved of all of Tenant's obligations under this Lease with respect to the Sublet Space, other than Tenant's obligation to pay Rent, (95%ii) of during the sale price Sublet Term, if and to the extent that Landlord or its designee (as subtenant) fails to pay to Tenant any amount that such subtenant is required to pay with respect to the Sublet Space, then Tenant shall have the right to credit such amount against Tenant's Rent obligations under this Lease and (iii) such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord and Tenant, at the Sublet Rent as set forth in the applicable Tenant's Offer Terms Notice (provided, that if the Sublet Rent is greater than Tenant's Qualified Sublet Cost, then the rent which Landlord did not make a Counteroffer, (or (2its designee) one hundred percent (100%) is required to pay to Tenant in respect of the Sublet Space shall be reduced by an amount equal to 50% of the amount by which the Sublet Rent exceeds Tenant's Qualified Sublet Cost; for purposes of this Section 5.02(d), "Tenant's Qualified Sublet Cost" for any Sublet Space subleased to Landlord (or its designee) in accordance with this Section 5.02 means the sum of (v) the portion of the Counteroffer price annual Fixed Rent which is attributable to such Sublet Space, plus (w) the amount of any reasonable brokerage commissions and reasonable legal fees paid by Tenant in connection with the sublease amortized on a straight-line basis over the Sublet Term with interest at the Prime Rate, plus (x) 1/2 of any costs incurred by Tenant for improvements to such Sublet Space within 12 months prior to the sublease commencement date (as evidenced by paid invoices), plus (y) the expenses, if a Counteroffer was madeany, which Tenant is required to reimburse Landlord for in accordance with Section 5.02(d)(E)(3) or the amount of any allowance specified in Tenant's Offer Notice to be paid by Tenant to the subtenant for the purpose of performing the work to separately demise the Sublet Space, plus (z) all other out-of-pocket costs incurred by Tenant in connection with such sublease). In , and for the event that Sublet Term (commencing on the Proposed Transfer Premises are not transferred to an unrelated third party within such nine proposed sublease commencement date specified in the applicable Tenant's Offer Notice), and: (9A) month period, such Transfer shall again be subject to all of the terms and conditions of this Section 10.03. If Tenant is required Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out contrary in this Section 10.03 is intended to apply only to 5.02(d); (B) shall be upon the sale of same terms and conditions as those contained in Tenant's Offer Notice and otherwise on the Proposed Transfer Premises by Tenant terms and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer conditions of this Lease (including, without limitation, an indemnity from Landlord (or Proposed Transfer Premises.its designee) (as subtenant) in favor of the Tenant Indemnified Parties substantially in the form of Section 6.12(b)), except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(d); (C) shall permit the sublessee, without Tenant's consent, freely to assign such sublease or any interest therein or to sublet all or any part of the Sublet Space (provided, that (I) if (1) the Sublet Space includes a partial floor and (2) on the commencement date of any such sublease and on the commencement date of any further sublease by such sublessee or the effective date of any assignment by such sublessee, Tenant and/or any Affiliated subtenants of Tenant occupies the balance of such floor, then any such assignee
Appears in 1 contract
Samples: Lease (Equitable Companies Inc)
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in In the event original Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.Section
Appears in 1 contract
Samples: Ground Lease
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10other than in accordance with Sections 5.01(c), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such election and shall first offer to transfer space, (ii) (A) in the Proposed Transfer Premises to Landlord or an Affiliate case of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in a proposed assignment, Tenant’s sole good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Tenant’s good faith offer of the fixed annual rent which Tenant desires to receive for such proposed subletting (assuming that a subtenant will pay for Taxes, Operating Expenses and absolute discretion electricity in the same manner, and utilizing the same base year or base amount, as Tenant pays for such amounts under this Lease) and (iii) the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (proposed assignment or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In the event that the Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) sublease such space from Tenant (if the proposed transaction is a counteroffer sublease of all or part of the Premises), (“Counteroffer”ii) setting forth have this Lease assigned to it or terminate this Lease (if the price and proposed transaction is an assignment or a sublease of all or substantially all of the Premises or a sublease of a portion of the Premises which, when aggregated with other material terms on which subleases then in effect, covers all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises). Said option may be exercised by Landlord would be willing by notice to purchase the Proposed Transfer PremisesTenant within 30 days after a Tenant’s Offer Notice, but together with all information required pursuant to Section 5.02(a), has been given by Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c)Landlord.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer is not accepted by Notice and all Rent shall be paid and apportioned to such date.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to have this Lease assigned to it (or its designee), then Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an assignment in form and substance reasonably satisfactory to Landlord, effective on the date that is the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer Notice. Tenant shall not be entitled to consideration or payment from Landlord (or Landlord’s designee) in connection with any such assignment. If the Tenant’s Offer Notice provides that Tenant will pay any consideration or grant any concessions in connection with the proposed assignment or sublease, then Tenant shall pay such consideration and/or grant any such concessions to Landlord (or Landlord’s designee) on the date Tenant assigns this Lease to Landlord (or Landlord’s designee).
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove providedsublease, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: then (i) ninety-five percent (95%) this Lease shall terminate with respect to such part of the sale price Premises on the effective date of the proposed sublease; (ii) from and after such date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises and (iii) Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as subtenant) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii) the rental set forth in the applicable Tenant’s Offer Terms if Landlord did not make a CounterofferNotice with respect to such sublet space, or and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(2A) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(C) shall permit the sublessee, without Tenant’s consent, freely to assign such sublease or any interest therein or to sublet all or any part of the space covered by such sublease and to make any and all alterations and improvements in the space covered by such sublease;
(D) shall provide that any assignee or further subtenant of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such assignee or subtenant, at its option, prior to or upon the expiration or other termination of such sublease, provided that such assignee or subtenant, at its expense, shall repair any damage caused by such removal and shall otherwise comply with the provisions of Article 4 and Exhibit D; and
(E) shall provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the subtenant) shall be for only the purposes permitted under Section 1.05, and (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise.
(g) In the case of a proposed sublease, Tenant shall not sublet any space to a third party at a rental which is more than 15% less (on a per rentable square foot basis) than the rental (on a per rentable square foot basis) specified in Tenant’s Offer Notice with respect to such space, without complying once again with all of the provisions of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises 5.02 and reoffering such space to Landlord during at such nine (9) month periodlower rental. In the case of a proposed assignment, Tenant shall not assign this Lease to a third party where Tenant pays a consideration or grants a concession to such third party for such assignment that is more than 15% greater than the procedures consideration offered to be paid or concession offered to be granted to Landlord in subsections 10.03(a) and (b) shall apply.
(d) The LandlordTenant’s right Offer Notice without complying once again with all of first offer set out in the provisions of this Section 10.03 is intended 5.02 and reoffering to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires assign this Lease to Landlord and becomes a “Tenant” hereunder, this Section 10.03 shall apply pay such consideration or grant such concession to any future attempted Transfer of this Lease or Proposed Transfer PremisesLandlord.
Appears in 1 contract
Samples: Lease (Open Link Financial, Inc.)
Landlord’s Right of First Offer. Subject and subordinate If at any time Tenant desires to Section 10.01(k) abovesell the Building, in then Tenant, before offering the event Tenant would like Building to make a Permitted Transfer with respect anyone, shall offer to all or any portion of Landlord the Premises (right to purchase the “Proposed Transfer Premises”) pursuant to Building on the same terms and conditions of this Article 10, upon which Tenant shall promptly give Landlord notice of such election and shall first intends to offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03Building for sale. Such offer may shall be made by Tenant to Landlord prior in a written notice (hereinafter called the "First Offer Notice") which offer shall designate the terms which Tenant intends to offer the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable Building for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c)sale. Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price offer set forth in the First Offer Terms if Landlord did not make a Counteroffer, or Notice by delivering to Tenant an acceptance (2) one hundred percent (100%hereinafter called "Landlord's Notice") of the amount such offer within 7 business days after delivery by Tenant of the Counteroffer price if a Counteroffer was made)First Offer Notice to Landlord. In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer Time shall again be subject to all of the terms essence with respect to the giving of Landlord's Notice. If Landlord does not accept (or fails to timely accept) an offer made by Tenant pursuant to the provisions of this Section 10.03Addendum with respect to the purchase of the Building, Tenant shall be free to sell the Building to anyone for no less than 95% of the purchase price and on any other terms offered to Landlord. If Notwithstanding the foregoing, if Tenant is required desires to sell the Building to anyone on terms which are less than 95% of the purchase price offered to Landlord, then Tenant must re-offer the Proposed Transfer Premises to Landlord during the right to purchase the Building on such nine terms (9the "Second Offer Notice"). Tenant shall deliver to Landlord the Second Offer Notice in the same manner as the First Offer Notice. If Landlord does not accept (or fails to timely accept) month periodthe re-offer made by Tenant pursuant to the provisions of this Addendum with respect to the purchase of the Building, the procedures in subsections 10.03(a) Landlord shall be deemed to have irrevocably waived all further rights under this Addendum and (b) Tenant shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended be under no further obligation to apply only Landlord with respect to the sale of the Proposed Transfer Premises Building by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer reason of this Lease or Proposed Transfer Premises.Addendum. ADDENDUM 6 RIGHT OF FIRST OFFER ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED SEPTEMBER 30, 1998, BETWEEN PROLOGIS DEVELOPMENT SERVICES INCORPORATED and SELECT COMFORT CORPORATION
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises for all or substantially all of the then-remaining Term (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b) pursuant to the terms and conditions of this Article 10or (c)), Tenant shall promptly give to Landlord notice (“Tenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to be sublet (including the specific area to be demised for sublet on any floor of the Premises) and the term of the subletting of such election and shall first space, (ii) (A) in the case of a proposed assignment, Tenant’s good faith offer of the consideration Tenant desires to receive or pay for such assignment (including any concessions Tenant desires to offer to transfer the Proposed Transfer Premises to Landlord proposed assignee) or an Affiliate (B) in the case of Landlord pursuant to a proposed subletting for all or substantially all of the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in then-remaining Term, Tenant’s sole good faith offer of the rent which Tenant desires to receive for such proposed subletting (including fixed rent, additional rent including proportionate shares, base years and/or base amounts for any escalation rent to be paid on account of PILOT, Impositions, taxes and absolute discretion operating expenses, electricity charges and other pass-through expenses and the amount of any work allowance, rent abatement or other tenant inducement, and any other proposed terms required by Landlord to calculate the Net Effective Rental Tenant desires to receive for such proposed subletting) and (iii) the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (proposed assignment or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)sublease commencement date.
(b) In the event that the Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) sublease such space from Tenant (if the proposed transaction is a counteroffer sublease of all or part of the Premises for all or substantially all of the then-remaining Term), (“Counteroffer”ii) setting forth terminate this Lease (if the price and proposed transaction is an assignment or a sublease of all or substantially all of the Premises or a sublease of a portion of the Premises which, when aggregated with other material terms on which Landlord would be willing to purchase subleases then in effect, covers all or substantially all of the Proposed Transfer Premises, but in either case, for substantially all of the then-remaining Term), or (iii) terminate this Lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of part of the Premises for all or substantially all of the then-remaining Term). Said option may be exercised by Landlord by notice to Tenant within 30 days after a Tenant’s Offer Notice, together with all information required pursuant to Section 5.02(a), has no obligation been given by Tenant to accept or otherwise address any such CounterofferLandlord. If Tenant elects to accept For the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with purposes of this Section 10.03(c)5.02 “substantially all of the then-remaining Term” shall mean that the term of the proposed subletting shall expire within the last twelve (12) months of the then Term.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day later of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) the date that is 60 days after Landlord’s receipt of the sale price applicable Tenant’s Offer Notice and (ii) the proposed assignment or sublease commencement date specified in the applicable Tenant’s Offer Notice, and all Rent shall be paid and apportioned to such termination date.
(d) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed sublease for all or substantially all of the then-remaining Term, then (i) this Lease shall terminate with respect to such part of the Premises on the later of (x) the date that is 60 days after Landlord’s receipt of the applicable Tenant’s Offer Notice and (y) the proposed sublease commencement date specified in the applicable Tenant’s Offer Notice; (ii) from and after such termination date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises prior to such termination and (iii) Tenant shall pay to Landlord, within 30 days after demand and completion, the reasonable costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise.
(e) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to sublet, such sublease to Landlord or its designee (as sublessee) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii) the rental rate per rentable square foot set forth in the applicable Tenant’s Offer Terms if Landlord did not make a CounterofferNotice with respect to such sublet space, or and shall be for the term set forth in the applicable Tenant’s Offer Notice (2) one hundred percent (100%) except that such term shall commence on the date that is 60 days after Landlord’s receipt of the amount of applicable Tenant’s Offer Notice if such date is later than the Counteroffer price if a Counteroffer was madeproposed commencement date set forth in such Tenant’s Offer Notice). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine , and:
(9A) month period, such Transfer shall again be subject to all of the terms and conditions of this Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(e);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice (including all rent abatements and other tenant inducements set forth therein) and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(e);
(C) shall permit the sublessee, without Tenant’s consent, freely to assign such sublease or any interest therein or to sublet all or any part of the space covered by such sublease and to make any and all alterations and improvements in the space covered by such sublease; provided, that (1) Tenant shall have no removal, restoration or repair obligations under Section 4.03 hereof with respect to such alterations and improvements in such space made by such sublessee and (2) the sublessee shall be subject to such restoration obligations as are set forth in the applicable Tenant’s Offer Notice;
(D) shall provide that any assignee or further sublessee of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such assignee or sublessee, at its option, prior to or upon the expiration or other termination of such sublease, provided that (1) such assignee or sublessee, at its expense, shall repair any damage caused by such removal, (2) Tenant shall have no removal, restoration or repair obligations under Section 4.03 hereof with respect to such alterations, decorations and installations in such space made by such assignee or sublessee and (3) Landlord or its designee shall remain subject to such restoration obligations as are set forth in the applicable Tenant’s Offer Notice; and
(E) shall provide that (1) the parties to such sublease expressly negate any intention that any estate created under such sublease be merged with any other estate held by either of said parties, (2) any assignment or subletting by Landlord or its designee (as the sublessee) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise, and (4) at the expiration of the term of such sublease, Tenant shall accept the space covered by such sublease in its then existing condition, subject to the obligations of the sublessee to make such repairs thereto as may be necessary to preserve such space in good order and condition and to such restoration obligations as are set forth to be imposed on such sublessee in the applicable Tenant’s Offer Notice. If Landlord is unable to give Tenant possession of the space covered by such sublease at the expiration of the term of the sublease by reason of the holding over or retention of possession of any tenant or other occupant through Landlord, then, provided Tenant otherwise has surrendered the balance of the Premises to Landlord as required under this Lease, Tenant shall be deemed to have delivered possession of the Premises to Landlord upon the Expiration Date and shall not be deemed a holdover under this Lease. If Landlord shall enter into a sublease pursuant to its option under Section 5.02(b)(i), Tenant shall be released from all obligations and liabilities under this Lease to the extent pertaining to the space subleased by Landlord that accrue from and after the commencement date of such sublease through the expiration date or earlier termination date of such sublease to the extent, and only to the extent, Landlord is obligated to perform such obligations or Landlord has assumed such liabilities, as the case may be, pursuant to the terms of such sublease to Landlord.
(f) In the case of a proposed sublease, Tenant shall not sublet any space to a third party (i) at a Net Effective Rental which is less (on a per rentable square foot basis) than 90% of the Net Effective Rental (on a per rentable square foot basis) specified in Tenant’s Offer Notice with respect to such space or (ii) on terms which include different proportionate shares, base years and/or base amounts for any escalation rent or (iii) for a term commencing later than 9 months after the date of the proposed commencement date set forth in Tenant’s Offer Notice, without, in any such case, complying once again with all of the provisions of this Section 10.03. If Tenant is required to 5.02 and re-offer the Proposed Transfer Premises offering such space to Landlord during at such nine lower rental or on such terms. In the case of a proposed assignment, Tenant shall not assign this Lease to a third party (9i) month period, the procedures in subsections 10.03(a) and on economic terms (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises including any consideration paid or received by Tenant and is not intended to apply to any concessions granted by Tenant) that differ, on a Mortgagee net effective basis, by more than 10% from the economic terms (including any consideration paid or another purchaser received by Tenant and any concessions granted by Tenant) specified in Tenant’s Offer Notice or (ii) on terms including an effective date occurring later than 9 months after the date of the Premises proposed effective date set forth in Tenant’s Offer Notice, without, in either case, complying once again with all of the provisions of this Section 5.02 and re-offering to assign this Lease to Landlord on such terms. “Net Effective Rental” means, with respect to any desired or actual sublease, one year’s worth of the amortized cash flow which would be derived from such sublease, determined by spreading the Net Present Rent Value of such sublease ratably on a monthly basis over the term of such desired or actual sublease using the Interest Rate in effect as of the date of Tenant’s Offer Notice. “Net Present Rent Value” means, with respect to any such sublease, the net present value, determined as of the desired or actual commencement date of such desired or actual sublease, using a discount rate of the Interest Rate in effect as of the date of Tenant’s Offer Notice, of the aggregate of all rent and additional rent (other than any escalation rent calculated by determining increases over a base year or base amount, which shall be addressed pursuant to a foreclosure clause (ii) above of a Mortgage this Section 5.02(f)) payable to Tenant under the desired or through a deed actual sublease, discounted from the date that any such payment would have been made under such desired or instrument of transfer delivered in lieu actual sublease to the commencement date of such foreclosuredesired or actual sublease, which is not subject after deducting therefrom the amount of all tenant inducements (such as, by way of example only, direct payments, work allowances, work letters and rent abatements) that are (or will be) granted to this Section 10.03the subtenant thereunder, provided however, in discounted from the event date that such Mortgagee tenant inducements were to have been given to the commencement date of such desired or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premisesactual sublease.
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in In the event Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Samples: Ground Lease
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(kenter into an Assignment of this Lease or Sublet all or part of the Premises (other than in accordance with Sections 5.01(b), (c) aboveor (d)), Tenant shall give to Landlord notice (“Tenant’s Offer Notice”) thereof along with a bona fide written offer from an independent third party specifying (i) in the event case of a proposed subletting, the location of the space to be sublet and the term of the subletting of such space, (ii) (A) in the case of a proposed assignment, Tenant’s good faith offer of the consideration Tenant would like desires to make receive or pay for such assignment or (B) in the case of a Permitted Transfer with respect proposed subletting, Tenant’s good faith offer of the fixed annual rent which Tenant desires to receive for such proposed subletting, and (iii) the proposed assignment or sublease commencement date, which date shall be at least thirty (30) days after the giving of Tenant’s Offer Notice.
(b) Tenant’s Offer Notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at Landlord’s option, (i) Sublease such space from Tenant if the proposed transaction is a Sublease of all or any a part of the Premises for a term equal to substantially all of the then remaining balance of the Term, (ii) terminate this Lease (if the proposed transaction is an Assignment or a Sublease of all or substantially all of the Premises or a Sublease of a portion of the Premises which, when aggregated with other Subleases then in effect, covers all or substantially all of the Premises), or (iii) terminate this Lease with respect to the space covered by the proposed Sublease (if the proposed transaction is a Sublease of part of the Premises for a term equal to substantially all of the then remaining balance of the Term). For the purpose hereof, “substantially all of the then remaining balance of the Term” shall mean either that (x) the term of the proposed Sublease is greater than eighty percent (80%) of the remaining balance of the Term (without giving effect to any unexercised Renewal Option, unless Tenant then exercises such Renewal Option pursuant to Article 10), or (y) at the conclusion of the term of the proposed Sublease, twelve (12) months or less shall remain with respect to the Term (without giving effect to any unexercised Renewal Option). Said option may be exercised by Landlord by notice to Tenant within thirty (30) days after a Tenant’s Offer Notice, together with all information required pursuant to Section 5.02(a), has been given by Tenant to Landlord. Notwithstanding the foregoing provisions of this Section 5.02(b), if the proposed transaction is a Sublease of all or part of the Premises for substantially all of the then remaining balance of the Term by reason of the applicability of clause (x) of the preceding sentence, but not clause (y), then Landlord shall not have the option to terminate this Lease as described in the preceding subclauses (ii) and (iii), but shall only have the option described in subclause (i) to Sublease such space from Tenant in accordance with the provisions of Section 5.02(f) below for the same term as set forth in Tenant’s Offer Notice.
(c) If Landlord exercises its option under Section 5.02(b)(ii) to terminate this Lease, then this Lease shall terminate on the proposed Assignment or Sublease commencement date specified in the applicable Tenant’s Offer Notice and all Rent shall be paid and apportioned to such date.
(d) [Intentionally omitted.]
(e) If Landlord exercises its option under Section 5.02(b)(iii) to terminate this Lease with respect to the space covered by a proposed Sublease, then (i) this Lease shall terminate with respect to such part of the Premises on the effective date of the proposed Sublease; (ii) from and after such date the Rent shall be adjusted, based upon the proportion that the rentable area of the Premises remaining bears to the total rentable area of the Premises and (iii) Tenant shall pay to Landlord, within thirty (30) days after delivery to Tenant of a written invoice therefor, the actual reasonable out-of-pocket costs incurred by Landlord in demising separately such part of the Premises and in complying with any Laws relating to such demise.
(f) If Landlord exercises its option under Section 5.02(b)(i) to sublet the space Tenant desires to Sublease, such Sublease (the “Proposed Transfer Recapture Sublease”) to Landlord or its designee (as subtenant; such party, the “Recapture Subtenant”) shall be in form and substance reasonably satisfactory to Landlord at the lower of (i) the rental rate per rentable square foot of Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii) the rental set forth in the applicable Tenant’s Offer Notice with respect to such sublet space (the “Recapture Premises”), and shall be for the term set forth in the applicable Tenant’s Offer Notice, and:
(A) pursuant shall be subject to all of the terms and conditions of this Article 10Lease except such as are irrelevant or inapplicable, and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(B) shall be upon the same terms and conditions as those contained in the applicable Tenant’s Offer Notice and otherwise on the terms and conditions of this Lease, except such as are irrelevant or inapplicable and except as otherwise expressly set forth to the contrary in this Section 5.02(f);
(C) shall permit the Sublessee, without Tenant’s consent, freely to enter into an Assignment of such Sublease or any interest therein or to Sublease all or any part of the space covered by such Sublease and to make any and all alterations and improvements in the space covered by such Sublease;
(D) shall provide that any Assignee or further Sublessee of Landlord or its designee may, at the election of Landlord, make alterations, decorations and installations in such space or any part thereof, any or all of which may be removed, in whole or in part, by such Assignee or Sublessee, at its option, prior to or upon the expiration or other termination of such Sublease, provided that such Assignee or Sublessee, at its expense, shall repair any damage caused by such removal; unless the Sublease is scheduled to expire at least eighteen (18) months before the Expiration Date, in which case, all such alterations, decorations and installations in such space shall be removed and Sublessee, at its expense, shall repair any such damage caused by such removal and restore the space to substantially its condition prior to the making of such alterations, decorations or installations; and
(E) shall provide that (1) the parties to such Sublease expressly negate any intention that any estate created under such Sublease be merged with any other estate held by either of said parties, (2) any Assignment or Sublease by Landlord or its designee (as the Sublessee) may be for any purpose or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant’s expense, may make such alterations as may be required or deemed necessary by Landlord to demise separately the subleased space and to comply with any Laws relating to such demise, and (4) at the expiration of the term of such Sublease, Tenant shall promptly give Landlord notice of accept the space covered by such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant Sublease in its then existing condition, subject to the terms obligations of this Section 10.03. Such offer may be made by Tenant the Sublessee to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or make such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments repairs thereto as may be necessary or appropriate to effect preserve such space in good order and condition; unless the transfer Sublease is scheduled to expire at least eighteen (18) months before the Expiration Date, in which case, at the expiration of the Proposed Transfer term of such Sublease, Tenant shall accept the space covered by such Sublease in the same condition that it was delivered to the Sublessee, reasonable wear and tear excepted.
(g) Until the expiration or sooner termination of a Recapture Sublease, performance by the Recapture Subtenant under such Recapture Sublease of any of its obligations thereunder shall be deemed performance by Tenant of any similar obligations under this Lease, and Tenant shall not be liable for any default under this Lease, deemed to be in default hereunder or liable for any indemnification obligation hereunder to the extent that such default or indemnification obligation is caused by any act or omission of the Recapture Subtenant under the Recapture Sublease or of any further subtenant of the Recapture Subtenant. Notwithstanding anything in this Lease to the contrary, Tenant shall have no liability for any Fixed Rent, Additional Charges or other sums due under this Lease attributable to the Recapture Sublease or any Recapture Premises pursuant unless and until the amount thereof has been paid by the Recapture Subtenant, and any liability of Tenant for any Rent attributable to any Recapture Premises shall be subject to and conditioned upon receipt of all such sums from the Recapture Subtenant. The foregoing shall not be construed to reduce or impair any obligation of Tenant for any Fixed Rent, Additional Charges or other sums remaining due hereunder which exceed any such sums then payable by any such Recapture Subtenant. Any failure of Landlord to comply with the provisions of the Recapture Sublease, other than with respect to the payment of rental to Tenant under the Recapture Sublease, shall not constitute a default on the part of Landlord thereunder and shall not constitute a default on the part of Tenant under this Lease, provided that if Recapture Subtenant shall fail to comply with the terms of the Recapture Sublease and such failure shall adversely affect Tenant’s use of any other portion of the Premises, then Landlord shall use commercially reasonable efforts to enforce its rights under such Recapture Sublease.
(h) In the case of a proposed sublease, Tenant shall not (i) sublet any space to a third party at a rental which is less by more than seven and one-half percent (7.5%) (on a per RSF basis) than the rental (on a per RSF basis) specified in Tenant’s Offer and Notice with respect to such space, (ii) change the location or, by more than five percent (5%) of the total RSF, the amount of space proposed to be sublet from that designated in Tenant’s Offer Notice, (iii) change the proposed commencement date to a date which is more than ninety (90) days later than, or change the proposed term of, the proposed sublease from that specified in Tenant’s Offer Notice, (iv) change any base year for escalation payments from those specified in Tenant’s Offer Notice, or (v) otherwise modify the terms being offered in a way that is materially less favorable to Tenant than the terms specified in Tenant’s Offer Notice, without, in each case, complying once again with all of the provisions of this Section 10.035.02 and re-offering such space to Landlord at upon such changed terms. In the event case of a proposed assignment, Tenant shall not (x) assign this Lease to a third party where Tenant pays greater consideration or grants a greater concession to such third party by more than seven and one-half percent (7.5%) for such assignment than the consideration offered to be paid or concession offered to be granted to Landlord in Tenant’s Offer Notice, (y) change the proposed commencement date of the proposed assignment to a date which is more than ninety (90) days later than that specified in Tenant’s Offer Notice or (z) otherwise modify the terms being offered in a way that is materially less favorable to Tenant than the terms specified in Tenant’s Offer Notice, without, in each case, complying once again with all of the provisions of this Section 5.02 and re-offering to assign this Lease to Landlord does not elect and pay such consideration or grant such concession to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such CounterofferLandlord. If Tenant elects to accept shall not have sublet the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time portion thereof or assigned this Lease to a third party within nine (9) months after the last day delivery to Landlord of the applicable Tenant’s Offer PeriodNotice, then Tenant shall not sublet any space or assign this Lease without complying once again with all of the provisions of this Section 5.02 and re-offering such space to Landlord or re-offering to assign this Lease to Landlord. In determining whether the sublease rental is less than (by more than seven and one-half percent (7.5%)), or the assignment consideration is greater than (by more than seven and one-half percent (7.5%)), that which was offered to Landlord, as provided that the above, all economic terms of the proposed sublease or assignment (including, without limitation, any such Transfer inducements or concessions) taken as a whole shall be considered and compared to those offered to Landlord. If, solely by virtue of the Proposed Transfer Premises failure of the rental to such third party are substantially comply with the same as the Offer Terms seven and one-half percent (which, 7.5%) parameter set forth in clause (x) above in the case of pricea proposed sublease, means that or the sale price is not less than: (i) ninetyfailure of the proposed consideration to comply with the seven and one-five half percent (957.5%) of the sale price set forth parameter in clause (y) above in the Offer Terms if Landlord did not make case of a Counteroffer, or proposed assignment (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to and all of the terms of other required parameters described above in this Section 10.03. If 5.02 are satisfied), Tenant is required to comply once again with all of the provisions of this Section 5.02 and re-offer the Proposed Transfer Premises space in question to Landlord, the period for Landlord to exercise its options pursuant to Section 5.02(b), however, shall be twenty (20) days, rather than thirty (30) days pursuant to Section 5.02(b). If, in connection with such re-offer, Tenant simultaneously submits to Landlord during all items required to accompany a Transfer Notice pursuant to Section 5.03 below, such nine twenty (920) month period, day period shall run concurrently with the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right period of first offer set out in this Section 10.03 is intended time for Landlord to apply only grant or deny its consent to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee proposed Sublease or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, Assignment (in the event such Mortgagee or other purchaser of the Premises Landlord does not exercise its options under Section 5.02) pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises5.03.
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in In the event Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Samples: Deed of Lease
Landlord’s Right of First Offer. Subject and subordinate to Section 10.01(k) above, in In the event Tenant would like to make a Permitted Transfer with respect to all or any portion of the Premises (the “Proposed Transfer Premises”) pursuant to the terms and conditions of this Article 10, Tenant shall promptly give Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.Section
Appears in 1 contract
Samples: Ground Lease
Landlord’s Right of First Offer. Subject and subordinate If at any time during the first ten Lease Years, Tenant desires to Section 10.01(k) above, Transfer Tenant's interest in the event Tenant would like Premises under this Lease (other than a Transfer for security purposes pursuant to make a Permitted Transfer Leasehold Mortgage or a foreclosure or deed in lieu of foreclosure with respect to all a Leasehold Mortgage, or a subletting in accordance with Article 18 or any portion of the Premises transfer permitted under Section 17.2), Tenant shall first deliver to Landlord a written offer (the “Proposed Transfer Premises”"Offer") pursuant to setting forth the terms and conditions upon which Tenant proposes to Transfer its interest and offering to Transfer Tenant's interest in the Premises to Landlord on such terms and conditions, provided that if such terms and conditions do not require cash payment, Landlord shall have the option of purchasing the interest for all cash. Landlord shall have forty-five (45) days from Landlord's receipt of the Offer to accept the Offer by written notice to Tenant. If Landlord does not give Tenant written notice accepting the Offer within said forty-five (45) day period, Tenant may at any time, thereafter, subject to all of the conditions, restrictions and terms of this Article 1017, Tenant shall promptly give Landlord notice Transfer its interest to a third party on any terms, regardless of such election and shall first offer whether more or less favorable than those stated in the Offer, without reoffering the interest to transfer Landlord; provided that the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms provisions of this Section 10.0317.7 shall apply to any subsequent Transfer. Such offer may be made by Tenant to If Landlord prior to accepts the time Tenant has made an offer to or received an offer from any third party.
(a) Offer, Landlord and Tenant shall offer (consummate the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted Landlord' written notice of acceptance. The Transfer shall be consummated by Tenant's delivery to Landlord of (or such longer time as is agreed i) a good and sufficient assignment of lease, in recordable form, assigning to by the parties in writing) in accordance with the Offer Terms; provided howeverLandlord, that in the event that such closing does not occur within such period as a result free and clear of a default any and all liens, subleases, and encumbrances except those caused by Landlord after acceptanceor those that, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept by accepting the Offer, Landlord mayhas agreed to take subject to, all of Tenant's right, title and interest in, to and under the Lease and in any and all Permitted Subleases that, by accepting the Offer, Landlord has agreed to accept, (ii) a good and sufficient grant deed of the Improvements, and (iii) a good and sufficient (warranty as to title, or as otherwise specified in the Offer) bill xx sale of any personal property included in the leasehold estate being acquired by Landlord. Landlord shall pay the consideration agreed upon in cash at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase closing of the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, specified in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall applyOffer.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) above, in the event Tenant would like to make a Permitted Transfer with respect to assign this Lease or sublet all or any portion part of the Premises for all or substantially all of the then-remaining Term (the “Proposed Transfer Premises”other than in accordance with Sections 5.01(b) or (c) or pursuant to the terms and conditions of this Article 10an Excluded Sublease), Tenant shall promptly give to Landlord notice of such election and shall first offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03. Such offer may be made by Tenant to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “OfferTenant’s Offer Notice”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion thereof, specifying (the “Offer Terms”). The Offer shall be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenanti) in the manner hereinabove providedcase of a proposed subletting, the location of the space to be sublet (including the specific area to be demised for sublet on any floor of the Premises) and the term of the subletting of such space, (ii) (A) in the case of a proposed assignment, Tenant’s good faith offer of the consideration Tenant may transfer desires to receive or pay for such assignment (including any concessions Tenant desires to offer to the Proposed Transfer proposed assignee) or (B) in the case of a proposed subletting for all or substantially all of the then-remaining Term, Tenant’s good faith offer of the rent which Tenant desires to receive for such proposed subletting (including fixed rent, additional rent including proportionate shares, base years and/or base amounts for any escalation rent to be paid on account of PILOT, Impositions, taxes and operating expenses, electricity charges and other pass-through expenses and the amount of any work allowance, rent abatement or other tenant inducement, and any other proposed terms required by Landlord to calculate the Net Effective Rental Tenant desires to receive for such proposed subletting) and (iii) the proposed assignment or sublease commencement date. An “Excluded Sublease” means Tenant’s right to sublease up to one (1) full floor of the Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price set forth in the Offer Terms if Landlord did not make a Counteroffer, one or (2) one hundred percent (100%) of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of the terms of this Section 10.03. If Tenant is required to re-offer the Proposed Transfer Premises to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall applymore transactions.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only to the sale of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.
Appears in 1 contract
Landlord’s Right of First Offer. Subject and subordinate If at any time Tenant desires to Section 10.01(k) abovesell the Building, in d then Tenant, before offering the event Tenant would like Building to make a Permitted Transfer with respect anyone, shall offer to all or any portion of Landlord the Premises (right to purchase the “Proposed Transfer Premises”) pursuant to Building on :3, the same terms and conditions of this Article 10, upon which Tenant shall promptly give Landlord notice of such election and shall first intends to offer to transfer the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms of this Section 10.03Building for sale. 00 SO Such offer may shall be made by Tenant to Landlord prior in a written notice (hereinafter called the "First Offer Notice") which offer shall designate the terms which Tenant intends to offer the time Tenant has made an offer to or received an offer from any third party.
(a) Tenant shall offer (the “Offer”) to transfer to Landlord the Proposed Transfer Premises pursuant to terms determined in Tenant’s sole and absolute discretion (the “Offer Terms”). The Offer shall be irrevocable Building for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”).
(b) In the event that the Offer is accepted by the Landlord during the Offer Period, Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writing) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c)sale. Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its election, make a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day of the Offer Period, provided that the terms of any such Transfer of the Proposed Transfer Premises to such third party are substantially the same as the Offer Terms (which, in the case of price, means that the sale price is not less than: (i) ninety-five percent (95%) of the sale price offer set forth in the First Offer Terms if Landlord did not make a Counteroffer, or Notice by delivering to Tenant an acceptance v (2) one hundred percent (100%hereinafter called " Landlord's Notice") of the amount such offer within 10 business days after delivery by Tenant of the Counteroffer First Offer Notice to Landlord. Time shall be of the essence with respect to the giving of Landlord's Notice. If Landlord does not accept (or fails to timely accept) an offer made by Tenant pursuant to the provisions of this CD Addendum with respect to the purchase of the Building, Tenant shall be free to sell the Building to anyone on terms which may be 95% less favorable to Tenant than those offered to Landlord. t I f T Tenant desires to sell the Building to anyone on terms which are less than 95% of the purchase price if a Counteroffer was madeoffered to Landlord, then Tenant must reoffer to Landlord the right to purchase the Building 0 on such terms (the "Second Offer Notice"). In Tenant shall deliver to Landlord the event that Second Offer Notice in the Proposed Transfer Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to all of same manner as the terms of this Section 10.03First Offer Notice. If Tenant is required Landlord does not accept (or fails to timely accept) the re-offer made by Tenant pursuant to the Proposed Transfer Premises provisions of this Addendum with respect to the purchase of the Building, Landlord shall be deemed to have irrevocably waived all further rights under this Addendum and Tenant shall be under no further obligation to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The Landlord’s right of first offer set out in this Section 10.03 is intended to apply only with respect to the sale of the Proposed Transfer Premises Building by Tenant and is not intended to apply to a Mortgagee or another purchaser of the Premises pursuant to a foreclosure of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer reason of this Lease or Proposed Transfer PremisesAddendum. ADDENDUM SIX HVAC MAINTENANCE CONTRACT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED ------ , 1999, BETWEEN PROLOGIS LIMITED PARTNERSHIP IV and STERILE RECOVERIES, INC.
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Landlord’s Right of First Offer. Subject and subordinate (a) If Tenant desires to Section 10.01(k) aboveassign this Lease, in sublet all or substantially all of the event Tenant would like Premises for all or substantially all of the remainder of the Term (taking into account all renewal options to make a Permitted Transfer with respect be offered to the subtenant), or sublet all or any portion part of the Upper Premises for all or substantially all of the remainder of the Term (the “Proposed Transfer Premises”) pursuant taking into account all renewal options to be offered to the terms and conditions of this Article 10subtenant), Tenant shall promptly give Landlord notice of such election and shall first offer (other than in connection with an Exempt Transaction, as to transfer which the Proposed Transfer Premises to Landlord or an Affiliate of Landlord pursuant to the terms provisions of this Section 10.03. Such offer may 5.02(a) shall not be made by applicable), then in any such case Tenant shall give to Landlord prior to the time Tenant has made an offer to or received an offer from any third party.
notice (a) Tenant shall offer (the “OfferTenant’s Offer Notice”) thereof, specifying (i) in the case of a proposed subletting, the location of the space to transfer be sublet (including the specific area to Landlord be demised for sublet on any floor of the Proposed Transfer Premises pursuant to terms determined Premises) and the term of the subletting of such space, (ii) (A) in the case of a proposed assignment, Tenant’s sole good faith offer of the consideration Tenant desires to receive or pay for such assignment or (B) in the case of a proposed subletting, Tenant’s good faith offer of the rent which Tenant desires to receive for such proposed subletting and absolute discretion all other material economic terms, (iii) the “proposed assignment or sublease commencement date and (iv) all of the other material terms of such proposed assignment or sublease; it being agreed, that for the purposes of Tenant’s Offer Terms”). The Offer Notice, that no particular proposed assignee or subtenant shall need to be irrevocable for a period ending at 5:00 P.M. east coast time, on the sixtieth (60th) day (or the next Business Day if the sixtieth (60th) day is not a Business Day) following the day on which the Offer was made (the “Offer Period”)identified.
(b) In the event that the Tenant’s Offer is accepted by the Notice shall be deemed an offer from Tenant to Landlord during the Offer Period, whereby Landlord shall close on the Proposed Transfer Premises within sixty (60) days after the Offer is accepted (or such longer time as is agreed to by the parties in writingLandlord’s designee) in accordance with the Offer Terms; provided however, that in the event that such closing does not occur within such period as a result of a default by Landlord after acceptance, then Tenant shall be entitled to Transfer the Proposed Transfer Premises to any third party in accordance with this Section 10.03(c). Landlord and Tenant shall execute such documents and instruments as may be necessary or appropriate to effect the transfer of the Proposed Transfer Premises pursuant to the terms of the Offer and this Section 10.03. In the event that Landlord does not elect to accept the Offer, Landlord may, at its electionLandlord’s option, make (i) terminate this Lease (if the proposed transaction is (x) an assignment, (y) a counteroffer (“Counteroffer”) setting forth the price and other material terms on which Landlord would be willing to purchase the Proposed Transfer Premises, but Tenant has no obligation to accept sublease of all or otherwise address any such Counteroffer. If Tenant elects to accept the Counteroffer, the parties shall close on the Proposed Transfer Premises in accordance with this Section 10.03(c).
(c) If the Offer is not accepted by Landlord (or a proposed Counteroffer is not accepted by Tenant) in the manner hereinabove provided, Tenant may transfer the Proposed Transfer Premises at any time within nine (9) months after the last day substantially all of the Offer Period, provided that the terms Premises or (z) a sublease of any such Transfer a portion of the Proposed Transfer Premises to such third party are which, when aggregated with other subleases then in effect, covers all or substantially all of the same as the Offer Terms Premises (whichprovided, in the case of priceclause (z), means that Landlord recognizes each existing subtenant as the sale price is direct tenant of Landlord on the terms and condition of such subtenant’s sublease, whether or not less than: such subtenant executed a Landlord’s Non-Disturbance Agreement), in either case of subclause (iy) ninety-five percent or (95%) z), for substantially all of the sale price set forth in then-remaining Term, taking into account all renewal options to be offered to the Offer Terms if Landlord did not make a Counteroffersubtenant or applicable subtenants), or (2ii) one hundred percent terminate this Lease with respect to the space covered by the proposed sublease (100%) if the proposed transaction is a sublease of part of the amount of the Counteroffer price if a Counteroffer was made). In the event that the Proposed Transfer Upper Premises are not transferred to an unrelated third party within such nine (9) month period, such Transfer shall again be subject to for all or substantially all of the terms remainder of the Term, taking into account all renewal options to be offered to the subtenant). Said option may be exercised by Landlord by notice to Tenant within 30 days after a Tenant’s Offer Notice, together with all information required pursuant to Section 5.02(a), has been given by Tenant to Landlord. If, within 30 days after Tenant’s submission to Landlord of Tenant’s Offer Notice, Landlord shall fail to notify Tenant of Landlord’s election to exercise or not exercise its rights under this Section 10.03. If Tenant is required 5.02(b), then, subject to re-offer the Proposed Transfer Premises provisions of Section 5.02(e), Landlord shall be deemed to Landlord during such nine (9) month period, the procedures in subsections 10.03(a) and (b) shall apply.
(d) The have waived Landlord’s right of first offer set out in recapture rights under this Section 10.03 is intended 5.02(b) with respect to apply only to such Tenant’s Offer Notice. For the sale purposes hereof, “substantially all of the Proposed Transfer Premises by Tenant and is not intended to apply to a Mortgagee or another purchaser remainder of the Premises pursuant to a foreclosure term” shall mean that the term of a Mortgage or through a deed or instrument of transfer delivered in lieu of such foreclosure, which is not subject to this Section 10.03, provided however, in the event such Mortgagee or other purchaser of the Premises pursuant to a foreclosure of a Mortgage acquires this Lease and becomes a “Tenant” hereunder, this Section 10.03 shall apply to any future attempted Transfer of this Lease or Proposed Transfer Premises.the
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Samples: Lease (BlackRock Inc.)
