Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made. (b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group). (c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 2 contracts
Samples: Lease Agreement (Amf Bowling Worldwide Inc), Lease Agreement (Amf Bowling Worldwide Inc)
Subletting Assignment. (a) Except as set forth Lessee may, on one or more occasions and from time to time, sublet the Leased Property or any portion thereof, or on one or more occasions and from time to time, assign its interest in this Lease, provided that:
(i) No Event of Default exists under this Lease on the date of such sublease or assignment;
(ii) Each sublease or assignment shall expressly be made subject and subordinate to the provisions hereof;
(iii) No sublease may extend beyond the Basic Term, unless Lessee has exercised its right to renew pursuant to paragraph 25(b(b) belowof Article 2 and the last Renewal Term for which Lessee has exercised its option under Article 2 extends through the scheduled expiration date of such sublease;
(iv) With respect to an assignment, Tenant shall notthe assignee is a partnership, corporation, limited liability company or other business entity which either owns one hundred percent (100%) of the common stock of Lessee or is an Affiliate of Lessee and with respect to which at least 50% of the ownership interest of such Affiliate is owned, directly or indirectly, by Lessee; and
(v) With respect to an assignment, the assignee assumes all of Lessee's duties, liabilities and obligations under this Lease accruing from and after the date of such assignment such that both Lessee and such assignee shall be jointly, severally and primarily liable for the performance of all of Lessee's duties, liabilities and obligations under this Lease accruing from and after the date of such assignment (such assumption agreement shall be in form and substance reasonably satisfactory to Lessor).
(b) No such sublease or assignment shall affect or reduce anyy obligations of Lessee, or the rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the obligations of a principal and not of a guarantor or surety, as though no subletting or assignment had been made.
(c) Lessee shall, within ten (10) days after the execution of any such sublease or assignment (with assumption agreement), deliver to Lessor a conformed copy thereof and of any short form lease or memorandum of lease which has been prepared for recording purposes.
(d) Notwithstanding anything to the contrary herein contained, without the prior written consent of LandlordLessor (which may be granted or withheld in Lessor's sole discretion), assign this Lease Lessee will not, directly or indirectly, consolidate with or merge into any interest hereincorporation, association, partnership or other business organization or permit any corporation, association, partnership or other business organization to consolidate with or merge into it, or any interest in Tenant, sell or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of otherwise transfer all or substantially all of its properties and assets, or acquire all or substantially all of the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any corporation, association, partnership or other business organization or individual, unless the Lessee shall be the entity surviving such consolidation, merger or other action, or the surviving entity or transferee shall enter into an assumption of this Lease in form and substance reasonably satisfactory to Lessor and Lessor's Mortgagee (together with an opinion of independent counsel in form and substance reasonably satisfactory to Lessor and Lessor's Mortgagee relating to the due authorization, execution, delivery and enforceability of such assumption).
(e) Neither this Lease nor the Term of this Lease shall be mortgaged by Lessee unless such mortgage is expressly made subject to and subordinate to the rights of Lessor and Lessor's Mortgagee, nor shall Lessee mortgage or pledge the interest of Lessee in and to any sublease of the foregoing Leased Property or any portion thereof or the rental payable thereunder unless such mortgage or pledge is a Person then (i) satisfying expressly made subject to and subordinate to the Investment Grade Criteria rights of Lessor and Lessor's Mortgagee. Any such mortgage or (ii) having a Net Worth of $100,000,000; providedpledge, howeverand any sublease or assignment not permitted by this Article 18, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. void.
(f) Lessee shall pay as Additional Rent to Lessor on demand all reasonable costs and expenses of Lessor and Lessor's Mortgagee (including in-house or outside counsel attorneys' reasonable fees and expenses) in reviewing or executing any instrument pursuant to this Article 18.
(g) With respect to any assignment requiring Landlord’s consentsublease which meets the requirements set forth above and the following requirements, such consent Lessor shall not be unreasonably withheldjoin with Lessee and the applicable sublessee in executing and delivering a subordination, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent attornment and non-disturbance agreement in form and substance reasonably satisfactory to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either Lessor:
(i) the use under Lessee has not suffered a Credit Rating Downgrade;
(ii) The applicable sublessee shall, pursuant to such sublease, occupy at least two (2) full floors;
(iii) The rental rate provided for in such sublease is supporting or ancillary to the Permitted Use or at least a "prevailing market rate"; and
(iiiv) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions Such sublessee has a tangible net worth of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience $80,000,000.00 and has a "3" as an owner ascribed by the National Association of Insurance Commissioners whether such designation is made public or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted reflected in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)private letter designation.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 2 contracts
Samples: Lease Agreement (Maxxam Inc), Lease Agreement (Maxxam Inc)
Subletting Assignment. (a) Except as set forth in paragraph 25(b) belowprovided herein, Tenant shall not, directly or indirectly, without the prior written consent of Landlord, not assign this Lease or any interest herein, sublet all or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy a portion of the Premises Leased Property without first obtaining Landlord’s consent, such consent not to be unreasonably withheld, delayed or any portion thereof, including any Site, by any Person other than conditioned. Landlord shall have a period of fifteen (15) Business Days following receipt of Tenant’s written request for consent within which to notify Tenant in writing whether Landlord elects to permit Tenant to assign this Lease or sublet such space, such consent not to be unreasonably withheld, conditioned or delayed. This If Landlord should fail to notify Tenant in writing of approval or disapproval (along with detailed reasons for such disapproval) within such fifteen (15) business day period, Landlord shall be deemed to have approved the proposed assignee or sublessee, as applicable. Notwithstanding the foregoing, Landlord’s consent shall not be required and Tenant shall have the right at any time to assign this Lease or sublet all or any portion of the Leased Property to (i) any Affiliate, (ii) any entity resulting from a merger or restructuring of or a consolidation with Tenant, or (iii) any entity that acquires Tenant or all or substantially all of Tenant’s assets (collectively, a “Permitted Transfer”). In any such event, Tenant shall notprovide thirty (30) days’ Notice of such Permitted Transfer, nor and a copy of the documents evidencing such Permitted Transfer, which shall any interest herein, be assignable as delivered to Landlord prior to the interest effective date thereof. In addition, Landlord’s consent shall not be required for (i) any transfer from time to time of publically traded shares of Tenant, or (ii) subleases by Tenant involuntarily where the aggregate of all subleases (including Permitted Transfers) constitutes twenty-five percent (25%) or less of the RSF of the Building.
(b) Unless otherwise agreed in writing by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned no assignment or delayedsubletting by Tenant shall relieve Tenant of any obligation under this Lease. For purposes Any assignment or subletting in violation of the provisions of this paragraph 25(a)Section 23 shall be voidable at Landlord’s option.
(c) Notwithstanding the foregoing, Tenant’s right to purchase the occurrence Leased Property as set forth in Section 43 shall not be assignable.
(d) If this Lease is assigned by Named Tenant and Named Tenant remains liable under this Lease, then Landlord, when giving Notice to any assignee of any Default, shall also serve a Corporate Control Eventcopy of such Notice on Named Tenant, and no Notice of Default shall be effective as against Named Tenant until a copy thereof is so given to Named Tenant. Named Tenant shall have a period of the same duration (commencing, however, on and extending from receipt of such Notice to cure such Default) as is given to Tenant therefor under this Lease (the “Named Tenant Grace Period”) to cure such Tenant Default. If Named Tenant cures such Default prior to the expiration of the Named Tenant Grace Period, such Default shall be deemed to be an assignment cured as to Named Tenant, and also as to all other parties having any interest as Tenant or by, through or under Named Tenant or any other Tenant hereunder.
(e) Any document evidencing a sublease or assignment, including a Permitted Transfer, shall bind and obligate the sublessee, assignee or transferee to observe and perform all covenants and provisions of this Lease applicable to the portion of the Leased Property which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any subject of the foregoing prohibited acts without sublease or assignment, and shall provide that with respect to a sublease, such prior written consent sublease is under, subject and subordinate to this Lease, and that upon termination of Landlordthis Lease, if required, shall be void and such sublease shall, at the option of Landlord, constitute an immediate Event of Default that entitles immediately terminate, or if Landlord elects, be converted to all remedies available at law a direct lease between Landlord and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar sublessee as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by LandlordLeased Property being subleased, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, rent and other economic terms as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing are contained in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)sublease.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) belowpermitted under subparagraph (b), Tenant shall not, directly or indirectly, without the prior written consent of Landlord, Lessee may not assign this Lease or any interest herein, sublet all or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy portion of the Premises or any portion thereofwithout Lessor’s consent, including any Site, by any Person other than Tenant, such which consent will not to be unreasonably withheld, conditioned withheld or delayed. This Lease Each such request for consent shall not, nor be accompanied by the form of the proposed assignment or sublease and financial statements of the proposed assignee or sublessee. The Lessor will place the request on the agenda within fifteen (15) business days. Lessor’s consent shall in no event be conditioned on an increase in the Basic or Additional Rent and/or any interest herein, amendment to this Lease. Any assignment or subletting without Lessor’s consent shall be assignable as voidable at Lessor’s election. The consent to the interest of Tenant involuntarily one assignment or by operation of law without the prior written consent of Landlord, such consent subletting shall not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written a consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any subsequent assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been madesubletting.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant Lessee may freely assign this Lease or sublease sublet all or any part or its interests in the Sites Premises, without Landlord’s the consent to Tenant’s Affiliatesof Lessor, grant leasehold mortgages and sublease in any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either following situations:
(i) If the use under such sublease assignment or subletting is supporting or ancillary to the Permitted Use or a Lessee Entity which is a Qualified Assignee; or
(ii) such portion is excess or not necessary to Tenant’s business operations at If the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence subletting is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lenderQualified Assignee in connection with a merger, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)consolidation or reorganization involving a Lessee Entity.
(c) If Landlord consents No such sublease or assignment, whether to a Lessee Entity or to a Qualified Assignee or otherwise, shall affect or reduce any obligations of Lessee or rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in writingfull effect as the obligations of a principal and not of a guarantor or surety, as though no subletting or if no assignment had been made. Each such consent is required as sublease shall specifically set forth in paragraph 25(bprovide that the rights, title and estate of the sublessee are subordinate and inferior to the rights, title and estate of Lessor hereunder and shall be bound by the provisions of this Lease.
(d) aboveFor purposes of this Lease, Tenant may complete the intended following events shall be deemed an assignment or sublease subject to the following conditionssublease, as appropriate: (i) no assignment the issuance of equity interests (whether stock, partnership interests or sublease otherwise) in Lessee or any subtenant or assignee, or any entity controlling any of them, to any person or group of related persons, in a single transaction or a series of related or unrelated transactions, such that, following such issuance, such person or group shall have Control (other than any minor sublease for a portion as defined below) of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use Lessee; or (ii) such portion is excess a transfer of Control of Lessee or not necessary to Tenant’s business operations at any subtenant or assignee, or any entity controlling any of them, in a single transaction or a series of related or unrelated transactions (including, without limitation, by consolidation, merger, acquisition or reorganization), except that the Site and transfer of outstanding capital stock or other listed equity interests by persons or parties other than “insiders” within the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession meaning of the Premises Securities Exchange Act of 1934, as amended, through the “over-the-counter” market or any part thereof until an executed duplicate original of such assignment recognized national or subleaseinternational securities exchange, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, included in determining whether Control has been transferred. “Control” shall mean direct or conditioned, and (iii) Tenant shall, only with respect to a sublease indirect ownership of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% or more of Tenant’s net profit on all of the voting stock of such corporation or 50% or more of all the legal and equitable interest in any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isother business entity.
Appears in 1 contract
Subletting Assignment. (a) Except Subject to paragraphs (c) and (d) of this Article 19, Lessee may sublet the Property or any portion or portions thereof, provided that (i) no Default or Event of Default under this Lease has occurred and is continuing on the date such sublease is entered into, (ii) each sublease shall expressly be made subject and subordinate to the provisions of this Lease and any Deed of Trust and shall be expressly subject to termination in the event this Lease is terminated pursuant to Article 27(b), Article 29(b) Article 33, Article 34 or as set forth a result of an Event of Default hereunder, (iii) each such sublease shall contain standards with regard to maintenance, repair, use, condition upon surrender and other matters relevant to the fair market value of Lessor's interest in paragraph 25(bthe affected Property, or the utility and useful life of such Property which are no less strict than those hereunder, and shall prohibit further subleasing and (iv) Lessee shall give Lessor, Agent Bank and LC Issuer the 30 days prior written notice of any such sublease in accordance with subsection (d) below, Tenant shall not, directly or indirectly, without .
(b) Lessee may not assign its interest under this Lease except with the prior written consent of LandlordLessor, assign which consent may be withheld in Lessor's sole and absolute discretion, and subject to paragraphs (c) and (d) of this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, Article 19 and provided that such consent not to assignment shall expressly be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as made subject and subordinate to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes terms of this paragraph 25(a)Lease.
(c) No such sublease or assignment shall affect or reduce any obligations of Lessee or rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the occurrence obligations of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (principal and not liable merely as of a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if though no subletting or assignment or sublease had been made.
(bd) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by saleLessee shall, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying at least 30 days prior to the Investment Grade Criteria execution of any such sublease, deliver to Lessor an Officer's Certificate providing notice of Lessee's intention to sublet in each case, which shall include the identity of the proposed sublessee and stating that such sublease complies with the provisions of paragraph (a) of this Article 19 and contains the express subordination required thereby and that Lessee has made a good faith determination that such sublease does not adversely affect the fair market value of Lessor's interest in the affected Property, or the utility or useful life of such Property and (ii) within 30 days after such execution, shall so deliver a conformed copy of such sublease (with acknowledgments) and a conformed copy of any short form lease or memorandum of lease which has been prepared for recording purposes.
(e) Neither this Lease nor the Term of this Lease shall be mortgaged by Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to any sublease of any Property or any portion thereof or the rental payable thereunder except as permitted hereunder. Any such prohibited mortgage or pledge, and any sublease or assignment not permitted by this Article 19, shall be void.
(f) Lessor may assign, convey or otherwise transfer its estate, right, title and interest hereunder or in the Properties, or any portion thereof in the manner provided by the Operative Documents (i) to Agent Bank, or (ii) having a Net Worth to LC Issuer or any Person controlled by or controlling or under common control of $100,000,000LC Issuer (subject to any restrictions on such right of Lessor set forth in the Deed of Trust); provided, however, that from time to time if the execution and when Tenant directly delivery of any such assignment, conveyance or indirectly fails to operate 400 other transfer shall not impair or fewer bowling centersdiminish any obligations of Lessor hereunder. Any such assignment, such Net Worth requirement conveyance or other transfer shall be $85,000,000subject to this Lease. With respect In connection with any such assignment, conveyance or other transfer, Lessee hereby agrees to make any payments due to Lessor hereunder to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned assignee or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations other successor in interest at the Site and written direction of Lessor. In the use absence of any such written direction, Lessee is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee authorized to continue to make all payments to Lessor or subtenant shall comply in accordance with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)most recent Lessor direction.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth otherwise permitted in paragraph 25(bparagraphs 25(f) belowand 25(g) of this Lease, Tenant shall not, directly or indirectly, without the prior written consent of Landlord and Mortgagee (which consent may be withheld or conditioned in Landlord’s and/or Mortgagee’s sole and absolute discretion), assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant or the Members or other persons entitled to occupancy of the Premises pursuant to arrangements entered into in the ordinary course of Tenant’s business (e.g., such consent not to be unreasonably withheldday rentals and extended vacation programs). Except as otherwise expressly permitted in paragraph 25 of this Lease, conditioned or delayed. This this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of LandlordLandlord and Mortgagee. Under no circumstances shall Tenant be permitted to sublease the Premises or any part thereof, such consent not to be unreasonably withheld, conditioned or delayedexcept as expressly permitted in paragraph 25(g) of this Lease. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, or the public announcement thereof, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s and Mxxxxxxxx’s prior written consent as set forth aboveabove (which consent may be denied by Landlord in Landlord’s sole discretion). Any of the foregoing prohibited acts (including, any purported assignment, sublease or Corporate Control Event) without such the prior written consent of LandlordLandlord and Mortgagee, if requiredas required in accordance with the terms hereof, shall be void ab initio and shall, at the option of LandlordLandlord or Mortgagee, constitute an immediate Event of Default under paragraph 15(d).
(b) The acceptance of Rent by Landlord from any other Person shall not be deemed to be a waiver by Landlord of any provision of this Lease. Consent to one Corporate Control Event shall not be deemed consent to any subsequent Corporate Control Event.
(i) Tenant shall have no right to mortgage, gxxxx x xxxx upon, encumber or otherwise finance its interest under this Lease or record a lien upon its interest in the Premises under this Lease; (ii) Tenant shall not permit, cause or suffer to be recorded in the real estate records of any county in which the Premises are located any mortgage, deed to secure debt, deed of trust, assignment, UCC financing statement or any other document granting, perfecting or recording a lien upon Tenant’s interest in this Lease or interest in the Premises under this Lease; (iii) Tenant shall not give any notice, or permit or cause any other party to give any notice, to Landlord of any existing lien on or security interest in Tenant’s interest in this Lease or interest in the Premises under this Lease; and (iv) Tenant shall not request that entitles Landlord execute (nor shall Landlord have any obligation to execute) any non-disturbance, attornment or any other agreement in favor of any party transacting any business or transaction with or related to Tenant, other than non-disturbance agreements with Members, as required by law.
(d) Tenant shall pay all remedies available at law of Landlord’s and Mortgagee’s reasonable attorneys’ fees and costs incurred in connection with any Corporate Control Event and in connection with any request made by Tenant pursuant to this Leaseparagraph 25.
(e) Txxxxx agrees to give notice to Mortgagee of any request for consent to any Corporate Control Event simultaneously with delivery of notice thereof to Landlord.
(f) Execution of Membership Contracts by any Subleasing Subsidiary shall not be deemed to constitute an assignment or sublease, as contemplated by this paragraph 25.
(g) Landlord hereby consents to the Tenant Subleases. Tenant agrees that the instrument by which any assignment or sublease shall cause each Subleasing Subsidiary to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right right, but shall not be obligated, to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions subtenant and failure of any such subtenant to perform such covenants shall be voiddeemed a failure of Tenant to perform such covenants. Unless Tenant shall cause each Subleasing Subsidiary to (1) comply with the SPE Requirements contained in the Subsidiary Guaranty and until expressly released (2) hold the Membership Contracts relating to Tenant’s Business assigned to such Subleasing Subsidiary pursuant to the Merger Transaction or otherwise entered into by Landlord, such Subleasing Subsidiary. Tenant shall in all cases any case remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant subtenant, including the Subleasing Subsidiaries, of all such covenants, as if no assignment or sublease had been made.
. No sublease, including the Tenant Subleases, shall release Tenant from Tenant’s obligations and liabilities under this Lease (bwhich shall continue as the obligations of a principal and not of a guarantor or surety) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities or alter the primary liability of Tenant or its Affiliates or in connection with to pay all Rent and to perform all obligations to be paid and performed by Txxxxx. Consent to the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent Subleases shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s deemed consent to any subsequent sublease. If any subtenant of Tenant’s Affiliates, grant leasehold mortgages and sublease including the Subleasing Subsidiaries, defaults in the performance of any Site obligation to third parties, provided be performed by Tenant shall remain liable under this Lease; provided, however, that Landlord may proceed directly against Tenant may not at any time have outstanding, with third parties, subleases without the necessity of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at pursuing or exhausting remedies against such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25subtenant. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall notnot amend, terminate or otherwise modify the Tenant Subleases without Landlord’s prior written consent, assign this Lease which may be withheld in its sole discretion. Tenant and Landlord hereby agree to execute any Person where such Personadditional documents reasonably required to effectuate the terms, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest provisions and conditions contained in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group25(g).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without the prior written consent of LandlordLandlord and Mortgagee, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayedLandlord and Mortgagee. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, or the public announcement thereof, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s and Mortgagee’s prior written consent as set forth above. Notwithstanding anything to the contrary provided herein, in the event of an assignment or sublease to an entity with a Credit Rating of either “BBB” or higher from S&P or “Baa2” or higher from Xxxxx’x, in each case for six (6) consecutive calendar months immediately preceding such assignment or sublease, as the case may be, (i) Landlord’s and Mortgagee’s prior written consent shall not be required for such assignment or sublease, as the case may be, and (ii) Guarantor shall be released from its obligations under the Guaranty. Any of the foregoing prohibited acts without such prior written consent of LandlordLandlord and Mortgagee, if required, shall be void and shall, at the option of LandlordLandlord or Mortgagee, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord and Mortgagee consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by LandlordLandlord and Mortgagee, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents and Mortgagee consent in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to LandlordLandlord and Mortgagee, and (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord and Mortgagee which consents shall not be unreasonably withheld, delayed, or conditioned.
(c) Unless and until expressly released by Landlord and Mortgagee, no assignment or sublease whatsoever shall release Tenant from Tenant’s obligations and liabilities under this Lease (which shall continue as the obligations of a principal and not of a guarantor or surety) or alter the primary liability of Tenant to pay all Rent and to perform all obligations to be paid and performed by Tenant. The acceptance of Rent by Landlord from any other Person shall not be deemed to be a waiver by Landlord of any provision of this Lease. Consent to one assignment or sublease shall not be deemed consent to any subsequent assignment or sublease. If any assignee, subtenant or successor of Tenant defaults in the performance of any obligation to be performed by Tenant under this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant or successor. Landlord may consent to subsequent assignments or subleases or amendments or modifications to this Lease with assignees, subtenants or successor of Tenant, without notifying Tenant or any successor of Tenant and without obtaining any consent thereto from Tenant or any successor of Tenant, and such action shall not release Tenant from liability under this Lease.
(iiid) Tenant shallshall have no right to mortgage, only with respect to a sublease of an entire Site xxxxx x xxxx upon, encumber or an assignment of otherwise finance Tenant’s interest under this Lease or record a lien upon Tenant’s interest in its entirety the Premises under this Lease, and Tenant shall not permit, cause or suffer to be recorded in the real estate records of the county in which the Premises are located any mortgage, deed to secure debt, deed of trust, assignment, UCC financing statement or any other document granting, perfecting, or recording a lien upon its receiptTenant’s interest in this Lease or interest in the Premises under this Lease. Tenant shall not give any notice, remit or permit or cause any other party to give any notice, to Landlord 50% of any existing lien on or security interest in Tenant’s net profit on interest in this Lease or interest in the Premises under this Lease. Tenant shall not request that Landlord execute (nor shall Landlord have any obligation to execute) any non-disturbance, attornment or any other agreement in favor of any party transacting any business or transaction with or related to Tenant.
(e) If Tenant shall assign this Lease or sublet the Premises to any Person other than Landlord, or request the consent of Landlord and Mortgagee to any assignment. Solely , subletting, or other action which requires Landlord’s consent hereunder, Tenant shall pay (i) Landlord’s reasonable standard processing fee which shall not exceed Five Thousand Dollars ($5,000) in each instance and (ii) Landlord’s and Mortgagee’s attorneys’ fees and costs incurred in connection therewith.
(f) Tenant agrees to give notice to Mortgagee of any request for purposes consent to any assignment or transfer of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isLease or subletting of all or any portion of the Premises simultaneously with delivery of notice thereof to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Aar Corp)
Subletting Assignment. (a) Except as set forth in paragraph 25(bSubject to subparagraphs (c), (d) belowand (e) hereof and Article 5 hereof, Tenant may sublet the Leased Property or any portion or portions thereof, provided that (i) no Material Event of Default has occurred and is continuing and (ii) each sublease shall notexpressly be made subject and subordinate to the provisions of this Lease. All references in this Lease to a sublease shall be deemed to include all license agreements and any other arrangements for occupancy or other use by any person or entity of all or any part of the Leased Property, directly and all references in this Lease to a subtenant shall include any licensee, occupant or indirectlyother user of all or any part of the Leased Property.
(b) Subject to subparagraphs (c), without (d) and (e) hereof and Article 5 hereof, Tenant may assign its interest under this Lease, provided that no Material Event of Default has occurred and is continuing and provided further that such assignment shall expressly be made subject to the prior written consent terms of Landlord, this Lease.
(c) The term of any subletting of the Leased Property or assignment of this Lease shall not extend beyond the Term of this Lease then in effect. Any sublessee or assignee shall be permitted to use the Leased Property only for the purposes permitted under this Lease.
(d) Tenant shall not sublease the Leased Property or any portion thereof or assign this Lease if the effect of such sublease or any interest herein, or any interest in Tenant, or sublease assignment would be to cause the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises Leased Property or any portion thereofthere of to be considered as used by a tax-exempt entity or other entity with the result that some or all of the federal, including any Sitestate or municipal income tax deductions which Landlord otherwise would be permitted to report with respect to the Leased Property or the Lease would be deferred or denied, by any Person other than Tenant, such consent or cause this Lease not to be unreasonably withhelda true lease for federal income tax purposes. Landlord agrees that within twenty (20) Business Days of the receipt of the receipt of any notice of proposed sublease or assignment from Tenant, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to Landlord will provide Tenant with notice on whether the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes requirements of this paragraph 25(a)subparagraph (d) are satisfied, the occurrence of a Corporate Control Event, and Landlord’s failure to notify Tenant within such period shall be deemed to be an a notification by Landlord that such requirements are satisfied.
(e) No sublease or assignment shall affect or reduce any obligation of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any or right of the foregoing prohibited acts without such prior written consent Landlord hereunder, and all obligations of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (principal and not liable merely as of a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if though no subletting or assignment or sublease had been made.
(bf) The requirements Tenant shall, within thirty (30) days after the execution thereof, deliver to Landlord a conformed copy (with respect acknowledgments) of the following: (i) all lease assignments; (ii) any individual sublease (other than to Landlord’s consent set forth an affiliate of Tenant) of more than 50,000 net rentable square feet of the Leased Property; and (iii) all subleases (other than to affiliates of Tenant) if in paragraph 25(athe aggregate such subleases comprise more than 30% of the net rentable square feet of the Leased Property.
(g) Neither this Lease nor the Term of this Lease hereby demised shall not apply with respect be mortgaged or pledged by Tenant, nor shall Tenant mortgage, pledge or assign the interest of Tenant in and to any sublease of the Leased Property or any portion thereof or the rental payable thereunder. Any such mortgage, assignment or pledge, and any sublease or assignment not permitted by this Article 21, shall be void.
(h) Landlord may assign, convey, or otherwise transfer its estate, right, title and interest hereunder or in the Leased Property or any part thereof, and upon execution and delivery of any such assignment, conveyance or other transfer, Landlord shall be released from its obligations hereunder arising after the date of such conveyance or other transfer, if any, provided that in connection with any public offering such assignment, conveyance or transfer by Landlord, the transferee agrees to assume all of securities the obligations of Landlord, if any, under this lease. Any such assignment, conveyance or other transfer shall be subject to this Lease. In the event that Landlord shall transfer part of its interest in the Leased Property subject to this Lease, then Tenant or its Affiliates or shall enter into such documentation as Landlord shall deem reasonably necessary to effectuate such transfer and to confirm the continued validity and enforceability of this Lease. Notwithstanding the forgoing, so long as the Lease remains in connection effect and no Material Event of Default is continuing, Landlord shall not sell the Leased Property except upon compliance with the sale of all or substantially all following conditions:
(i) the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person transferee shall be a single purpose entity which is not engaged in any business other than the resulting ownership, financing and leasing of the Leased Property.
(ii) the transferee on account shall be controlled (within the meaning of Rule 405 under the Rules and Regulations of the Securities Act of 1933, as amended) by an Institutional Investor.
(iii) Landlord shall have given notice to Tenant of the identity of the proposed transferee not fewer than ten (10) Business Days prior to entering into any binding agreement with the transferee relating to the transfer of the Leased Property.
(iv) the transferee shall not be a direct competitor of Tenant, meaning a bank, bank holding company, savings bank, savings and loan association, or trust company, or a parent company or subsidiary of any of the foregoing foregoing, doing business in the same market as Tenant (a “Direct Competitor”). In the event of a violation by Landlord of the above restrictions, Tenant may seek an injunction to prohibit any such sale, and any sale in violation of this provision shall be void ab initio. In the event that, upon receipt of Landlord’s notice set forth above, Tenant acting in good faith, reasonably believes that the proposed transferee is a Person then (i) satisfying Direct Competitor, Tenant will have the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; providedright, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion period of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years Business Days following receipt of such notice, to approve or disapprove such proposed transfer. In the event that Landlord intends to sell the Leased Property to a transferee which in Landlord’s judgment is otherwise generally known not a Direct Competitor, Landlord shall deliver a notice to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior Tenant requesting Tenant’s approval of such proposed transfer. Tenant shall within ten (10) years, filed for bankruptcy, or, (III) if as Business Days from its receipt of such notice confirm in writing Tenant’s agreement that the proposed transferee is not a prior tenant Direct Competitor. If Tenant does not object to the proposed transfer or provide a written response to Landlord within either of Landlord in the prior above ten (10) years was evicted from Business Day period, Tenant shall, subject to Tenant’s right of first refusal pursuant to Article 16 of the Lease, be deemed to have approved such transfer and Tenant shall have waived its rights to object to such transfer or seek an injunction hereunder. In the event that Landlord and Tenant cannot reach agreement with respect to whether the proposed transferee is a property Direct Competitor of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStarTenant, then as a prior borrower the parties shall submit such issue to arbitration in accordance with the provisions of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”)Article 38 hereof. Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months rights hereunder shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to any proposed transfer and any future transfer by any permitted successor or assign of Landlord. In the other members event that Landlord transfers (or attempts to transfer) its interest in the Leased Property in violation of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) abovethis section, Tenant may complete will be reimbursed on demand by Landlord for its reasonable attorney’s fees and other out-of-pocket expenses incurred in the intended assignment or sublease subject enforcement of its rights hereunder. This paragraph (h) of Article 21 is not applicable to the following conditions: (i) no assignment or sublease (other than any minor sublease for transfer by Landlord to a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession mortgagee of the Premises Leased Property, by foreclosure or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isotherwise.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Subletting Assignment. (a) Except as set forth otherwise permitted in paragraph 25(bparagraphs 25(f), 25(g), 38(d) belowand 38(j) of this Lease, Tenant shall not, directly or indirectly, without the prior written consent of Landlord and Mortgagee (which consent may be withheld or conditioned in Landlord's and/or Mortgagee's sole and absolute discretion), assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant or the Members or other persons entitled to occupancy of the Premises pursuant to arrangements entered into in the ordinary course of Tenant's business (e.g., such consent not to be unreasonably withheldday rentals and extended vacation programs). Except as otherwise expressly permitted in paragraph 25 of this Lease, conditioned or delayed. This this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of LandlordLandlord and Mortgagee. Under no circumstances shall Tenant be permitted to sublease the Premises or any part thereof, such consent not to be unreasonably withheld, conditioned or delayedexcept as expressly permitted in paragraph 25(g) of this Lease. For purposes of this paragraph 25(a)) and except as provided in paragraph 38(d) and 38(j) hereof, the occurrence of a Corporate Control Event, or the public announcement thereof, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s 's and Mortgagee's prior written consent as set forth aboveabove (which consent may be denied by Landlord in Landlord's sole discretion). Any of the foregoing prohibited acts (including, any purported assignment, sublease or Corporate Control Event) without such the prior written consent of LandlordLandlord and Mortgagee, if requiredas required in accordance with the terms hereof, shall be void ab initio and shall, at the option of LandlordLandlord or Mortgagee, constitute an immediate Event of Default under paragraph 15(d).
(b) The acceptance of Rent by Landlord from any other Person shall not be deemed to be a waiver by Landlord of any provision of this Lease. Consent to one Corporate Control Event shall not be deemed consent to any subsequent Corporate Control Event.
(i) Tenant shall have no right to mortgage, xxxxx x xxxx upon, encumber or otherwise finance its interest under this Lease or record a lien upon its interest in the Premises under this Lease; (ii) Tenant shall not permit, cause or suffer to be recorded in the real estate records of any county in which the Premises are located any mortgage, deed to secure debt, deed of trust, assignment, UCC financing statement or any other document granting, perfecting or recording a lien upon Tenant's interest in this Lease or interest in the Premises under this Lease; (iii) Tenant shall not give any notice, or permit or cause any other party to give any notice, to Landlord of any existing lien on or security interest in Tenant's interest in this Lease or interest in the Premises under this Lease; and (iv) Tenant shall not request that entitles Landlord execute (nor shall Landlord have any obligation to execute) any non-disturbance, attornment or any other agreement in favor of any party transacting any business or transaction with or related to Tenant, other than non-disturbance agreements with Members, as required by law.
(d) Tenant shall pay all remedies available at law of Landlord's and Mortgagee's reasonable attorneys' fees and costs incurred in connection with any Corporate Control Event and in connection with any request made by Tenant pursuant to this Leaseparagraph 25.
(e) Tenant agrees to give notice to Mortgagee of any request for consent to any Corporate Control Event simultaneously with delivery of notice thereof to Landlord.
(f) Execution of Membership Contracts by any Subleasing Subsidiary shall not be deemed to constitute an assignment or sublease, as contemplated by this paragraph 25.
(g) Landlord hereby consents to the Tenant Subleases. Tenant agrees that the instrument by which any assignment or sublease shall cause each Subleasing Subsidiary to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right right, but shall not be obligated, to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions subtenant and failure of any such subtenant to perform such covenants shall be voiddeemed a failure of Tenant to perform such covenants. Unless Tenant shall cause each Subleasing Subsidiary to (1) comply with the SPE Requirements contained in the Subsidiary Guaranty and until expressly released (2) hold the Membership Contracts relating to Tenant's Business assigned to such Subleasing Subsidiary pursuant to the Merger Transaction or otherwise entered into by Landlord, such Subleasing Subsidiary. Tenant shall in all cases any case remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant subtenant, including the Subleasing Subsidiaries, of all such covenants, as if no assignment or sublease had been made.
. No sublease, including the Tenant Subleases, shall release Tenant from Tenant's obligations and liabilities under this Lease (bwhich shall continue as the obligations of a principal and not of a guarantor or surety) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities or alter the primary liability of Tenant or its Affiliates or in connection with to pay all Rent and to perform all obligations to be paid and performed by Tenant. Consent to the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent Subleases shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s deemed consent to any subsequent sublease. If any subtenant of Tenant’s Affiliates, grant leasehold mortgages and sublease including the Subleasing Subsidiaries, defaults in the performance of any Site obligation to third parties, provided be performed by Tenant shall remain liable under this Lease; provided, however, that Landlord may proceed directly against Tenant may not at any time have outstanding, with third parties, subleases without the necessity of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at pursuing or exhausting remedies against such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25subtenant. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall notnot amend, terminate or otherwise modify the Tenant Subleases without Landlord’s 's prior written consent, assign this Lease which may be withheld in its sole discretion. Tenant and Landlord hereby agree to execute any Person where such Personadditional documents reasonably required to effectuate the terms, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest provisions and conditions contained in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group25(g).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below16.1 This Lease and the promises, covenants, conditions and agreements herein contained shall inure to the benefit of and be binding upon Landlord, its successors and assigns, and they shall inure to the benefit of and be binding upon Tenant, its successors and permitted assigns. Tenant shall notnot be allowed to assign its leasehold interest created herein, directly this Lease, or indirectlyany of its rights, privileges, or obligations created hereunder without prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute subjective discretion. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. The transfer, sale, assignment or hypothecation of any shares of stock or ownership interests in the Tenant so as to result in a change in the control thereof by the persons or entities owning a controlling interest therein as of the date of this Lease, without the prior written consent of Landlord, assign which consent Landlord may withhold in its sole and absolute subjective discretion, shall be deemed an assignment made in breach of this covenant. Any other provision in this Lease or any interest hereinto the contrary notwithstanding, the Tenant shall have no right to sublet the Premises, or any interest in Tenantpart thereof to subtenants, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such which consent Landlord may withhold in its sole and absolute subjective discretion. Landlord's consent to any assignment, subletting, occupation, or use by another person other than Tenant shall not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited a consent to any subsequent assignment, subletting, occupation or use by the preceding paragraph unless Tenant obtains another person other than Tenant, it being understood that Landlord’s prior written consent as set forth above. Any 's rights hereunder are continuing and shall not be exhausted, regardless of the foregoing prohibited acts without number of times such prior written assignment, subletting, occupation or use shall occur. In the event Landlord shall consent of Landlordto such subletting or assignment, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all fifty percent (50%) of the covenants to be performed Net Sums or other economic consideration received by Tenant as a result of such subletting or assignment, whether denominated rental or otherwise under the sublease or assignment, which exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate prorated to the reflect obligations allocable to that portion of the Demised Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be voidpayable to Landlord as Additional Rent under this Lease without affecting or reducing other obligations of Tenant hereunder. Unless The term "Net Sums" shall mean the amount of rental or other consideration received by Tenant in connection with such subleasing or assignment, less Tenant's costs actually incurred to prepare the space for leasing and until expressly released by the costs actually incurred to actually lease such space, including but not limited to commissions, architectural fees, construction costs, attorneys fees and engineering fees. Upon Landlord's request, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant provide Landlord with evidence of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account payment of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)costs.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) belowpermitted under subparagraph (b), Tenant shall not, directly or indirectly, without the prior written consent of Landlord, Lessee may not assign this Lease or any interest herein, sublet all or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy portion of the Premises or any portion thereofwithout Lessor's consent, including any Site, by any Person other than Tenant, such which consent will not to be unreasonably withheld, conditioned withheld or delayed. This Lease Each such request for consent shall not, nor be accompanied by the form of the proposed assignment or sublease and financial statements of the proposed assignee or sublessee. The Lessor will place the request on the agenda within fifteen (15) business days. Lessor's consent shall in no event be conditioned on an increase in the Basic or Additional Rent and/or any interest herein, amendment to this Lease. Any assignment or subletting without Lessor's consent shall be assignable as voidable at Lessor's election. The consent to the interest of Tenant involuntarily one assignment or by operation of law without the prior written consent of Landlord, such consent subletting shall not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written a consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any subsequent assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been madesubletting.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant Lessee may freely assign this Lease or sublease sublet all or any part or its interests in the Sites Premises, without Landlord’s the consent to Tenant’s Affiliatesof Lessor, grant leasehold mortgages and sublease in any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either following situations:
(i) If the use under such sublease assignment or subletting is supporting or ancillary to the Permitted Use or a Lessee Entity which is a Qualified Assignee; or
(ii) such portion is excess or not necessary to Tenant’s business operations at If the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence subletting is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lenderQualified Assignee in connection with a merger, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)consolidation or reorganization involving a Lessee Entity.
(c) If Landlord consents No such sublease or assignment, whether to a Lessee Entity or to a Qualified Assignee or otherwise, shall affect or reduce any obligations of Lessee or rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in writingfull effect as the obligations of a principal and not of a guarantor or surety, as though no subletting or if no assignment had been made. Each such consent is required as sublease shall specifically set forth in paragraph 25(bprovide that the rights, title and estate of the sublessee are subordinate and inferior to the rights, title and estate of Lessor hereunder and shall be bound by the provisions of this Lease.
(d) aboveFor purposes of this Lease, Tenant may complete the intended following events shall be deemed an assignment or sublease subject to the following conditionssublease, as appropriate: (i) no assignment the issuance of equity interests (whether stock, partnership interests or sublease otherwise) in Lessee or any subtenant or assignee, or any entity controlling any of them, to any person or group of related persons, in a single transaction or a series of related or unrelated transactions, such that, following such issuance, such person or group shall have Control (other than any minor sublease for a portion as defined below) of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use Lessee; or (ii) such portion is excess a transfer of Control of Lessee or not necessary to Tenant’s business operations at any subtenant or assignee, or any entity controlling any of them, in a single transaction or a series of related or unrelated transactions (including, without limitation, by consolidation, merger, acquisition or reorganization), except that the Site and transfer of outstanding capital stock or other listed equity interests by persons or parties other than "insiders" within the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession meaning of the Premises Securities Exchange Act of 1934, as amended, through the "over-the-counter" market or any part thereof until an executed duplicate original of such assignment recognized national or subleaseinternational securities exchange, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, included in determining whether Control has been transferred. "Control" shall mean direct or conditioned, and (iii) Tenant shall, only with respect to a sublease indirect ownership of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% or more of Tenant’s net profit on all of the voting stock of such corporation or 50% or more of all the legal and equitable interest in any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isother business entity.
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without Lessee may sublet the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises Leased Property or any portion thereof, including any Siteor assign its interest in this Lease, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate provided that:
(i) No Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease has occurred and is continuing on the date of such sublease or assignment;
(ii) Each sublease or assignment shall expressly be made subject to the provisions hereof; and
(iii) No sublease may extend beyond the then current Basic Term Expiration Date, except (A) a sublease may extend no later than the end of the term of the Year 20 Rent Reset Lease Amendment if such Rent Reset Lease Amendment has been duly executed by Lessee and Lessor and (B) a sublease may extend no later than the end of the term of the last Alabama Lease Agreement Renewal Term with respect to which Lessee has validly exercised its right pursuant to paragraph (b) of Article 2.
(b) No such sublease or assignment shall affect or reduce any obligations of Lessee or any Guarantor, or the rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the case obligations of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (principal and not liable merely as of a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if though no subletting or assignment or sublease had been made.
(bc) The requirements with respect Lessee shall, at least ten (10) days prior to Landlord’s consent set forth in paragraph 25(a) shall the execution of any such sublease or assignment, deliver to Lessor a certificate of an Executive Officer stating that such sublease or assignment does not apply with respect to any assignment in connection with any public offering adversely affect the fair market value of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by saleLeased Property, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use uses under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply assignment are consistent with the applicable provisions business uses of this Lease property located in the same general area as the Leased Property, and Tenant provides Landlord with notice of that the uses under such leasehold mortgage or sublease arrangement and otherwise complies will comply with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secureArticle 4 hereof, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior within ten (10) years days after such execution, a conformed copy thereof and of any short form lease or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, memorandum of lease which has been prepared for recording purposes.
(IId) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in Neither this Lease is held by iStar, then as a prior borrower nor the Term of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant Lease shall be permitted mortgaged by Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) sublease of the Sites (thereby deleting Leased Property or any portion thereof or the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of rental payable thereunder. Any such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender groupor pledge, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions sublease or assignment not permitted by this Article 18, shall not be applicable to the other members of such lender group)void.
(ce) If Landlord consents Lessee shall pay as Additional Rent to Lessor on demand all reasonable costs and expenses of Lessor and Lessor's Mortgagee (including in-house or outside counsel attorneys' fees and expenses) in writing, reviewing or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject executing any instrument pursuant to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isArticle 18.
Appears in 1 contract
Samples: Lease Agreement (Ipec Holdings Inc)
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without Lessee may sublet the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises Leased Property or any portion thereof, including any Siteor assign its interest in this Lease, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate provided that.
(i) No Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease has occurred and is continuing on the date of such sublease or assignment; and
(ii) Each sublease or assignment shall expressly be made subject to the provisions hereof.
(b) No such sublease or assignment shall affect or reduce any obligations of Lessee or any Guarantor, or the rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the case obligations of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (principal and not liable merely as of a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if though no subletting or assignment or sublease had been made.
(bc) The requirements with respect Lessee shall, at least 10 days prior to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account execution of any such sublease or assignment, deliver to Lessor a certificate of an Executive Officer stating the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use uses permitted under such sublease is supporting or ancillary to assignment, and within 10 days after such execution, a conformed copy thereof and of any short form lease or memorandum of lease which has been prepared for recording purposes.
(d) Neither this Lease nor the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions Term of this Lease and Tenant provides Landlord with notice of such leasehold shall be mortgaged by Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to any sublease arrangement and otherwise complies with of the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s Leased Property or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu portion thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to rental payable thereunder. Any such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years mortgage or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender grouppledge, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions sublease or assignment not permitted by this Article 18, shall not be applicable to the other members of such lender group)void.
(ce) If Landlord consents Lessee shall pay as Additional Rent to Lessor on demand all reasonable costs and expenses of Lessor and Lessor's Mortgagee (including attorneys' fees) in writing, reviewing or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject executing any instrument pursuant to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isArticle 18.
Appears in 1 contract
Samples: Lease Agreement (Bway Corp)
Subletting Assignment. 18.1 SUBLETTING/ASSIGNMENT:
(a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly Lessee may not assign nor sublet all or indirectlyany portion of the Premises, without the prior written consent of Landlord, assign this Lease the Lessor. In the event the Lessee requests the Lessor's consent to an assignment or any interest herein, subletting of 50% or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy more of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to rentable space in the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a)Premises, the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have Lessor reserves the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under terminate this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of and take back the entirety of a Site Premises and release the Lessee from further obligation to perform under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease). As to any proposed subtenant or assignee, any leasehold mortgagee or subtenant Lessee shall comply with the applicable provisions supply information as shall be reasonably required by Lessor. Lessor shall notify Lessee in writing, within thirty (30) days after receipt of this Lease and Tenant provides Landlord with notice Lessee's request, of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof its decision (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and approve such assignment or subletting, or (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any disapprove such assignment or sublease prohibited by this sentence is herein calledsubletting, a “BB Prohibited Transaction”)or (iii) if applicable, to terminate the Lease. Landlord shallIf Lessor elects to terminate, Lessee shall have the right, within five (5) Business Days days after receipt of submission Lessor's election to terminate, to withdraw its request to assign or sublet in which event this Lease shall continue as if the request to sublet or assign had never been made. If the Lessor consents to any assignment or subletting, the subtenant must conform to all the terms, covenants and conditions of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined this Lease. Any agreement as to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant or sublet shall be permitted in a form acceptable to do so without Landlord’s consent only if (A) Lessor. Both the sum Lessee and any approved subtenant must warrant that the subtenant meets all applicable federal, state and local rules, laws, ordinances and codes, and that the use and occupancy of Guarantor’s Consolidated EBITDA plus Fixed Rent (the subtenant is permissible under municipal zoning regulations and that a Certificate of Occupancy will be obtained for the proposed use prior to entry and possession by such subtenant. Notwithstanding such subletting or assignment, the Lessee in this Lease shall remain directly and Tenant’s Other primarily liable for performance of the terms and conditions of this Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord Lessor shall have the right to purchase require and demand that the Bowling Equipment for Lessee pay and perform the terms of this Lease. Any surplus monies made above the Lease on a purchase price equal sublease or assignment basis shall be divided fifty (50%) percent to the net book value for tax purposes Lessor and fifty (effective immediately prior 50%) percent to Lessee. Lessor's share of said surplus above the date of such amendment) effective upon such amendmentLessee's current rent will be paid each and every month as Additional Rent if and when a sublease or assignment occurs. Additionally, if Surplus shall be deemed to be the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions excess of the lender group Base Rent received by the Lessee from its sublessees or assignees over the Base Rent paid by the Lessee hereunder.
(and b) Lessor's consent to any such restrictions sublet or assignment under (a) above shall not be applicable to unreasonably withheld. Under this Section, a reasonable basis for withholding consent shall include, without limitation, the other members financial worth and stability of such lender group)the proposed sublessee or assignee, and anything which in Lessor's judgment may materially increase the risk of fire, explosion, increased governmental regulation, added insurance premiums or environmental contamination.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(bNotwithstanding the provision of 18.1(a) and (b) above, Tenant may complete in the intended assignment event that Lessee's parent corporation, Pharmacontrol Corp., shall sell, transfer, or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion otherwise dispose of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession majority of the Premises shares of the common stock of Lessee, or any part thereof until an executed duplicate original sell all or substantially all of its assets, such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents event shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or deemed an assignment of the Lease and Pharmacontrol Corp., as guarantor of this Lease, shall be released from all of its obligations hereunder if the successor owner of Lessee (the "Successor Company"), is, in the reasonable estimation of Lessor, at least as financially responsible as Pharmacontrol as evidenced by such financial information as delivered to Lessor by the Successor Company or Pharmacontrol Corp. as may be requested by Lessor. Upon such approval of Lessor of such assignment, and upon execution of the attached Guaranty by the Successor Company, Lessor shall deliver to Pharmacontrol Corp. a release in form and substance satisfactory to Pharmacontrol Corp. except that in no event shall Pharmacontrol Corp. be released from any of Lessee's obligations to comply with environmental laws, including, without limitation, ECRA.
18.2 NO RELEASE OF TENANT: Regardless of Lessor's consent, no subletting or assignment shall release Lessee of Lessee's obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations to be performed by Lessee hereunder. The acceptance of rent by Lessor from any other person shall not be deemed to be a waiver by Lessor of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, Lessor may proceed directly against Lessee without the necessity of exhausting remedies against said assignee. Lessor may, upon notice to Lessee, consent to subsequent assignments or subletting of this Lease in or amendments or modifications to this Lease with assignees of Lessee without notifying Lessee or any successor of Lessee and without obtaining its entirety upon its receiptor their consent thereto, remit to Landlord 50% and such action shall not relieve Lessee of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit liability under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isthis Lease.
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) belowprovided herein, Tenant shall not, directly or indirectly, without the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than TenantTenant and its agents, such consent not to be unreasonably withheldrepresentatives, conditioned or delayedemployees, directors, officers, shareholders, affiliates, consultants, independent contractors, permitted subtenants, licensees, invitees and permitted successors and assigns. This Except as provided herein, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord. Notwithstanding the foregoing, or anything to the contrary contained in this Lease, the Tenant may, without the prior written consent of Landlord: (i) sublease up to twenty percent (20%) of the square footage of Improvements of any Site, (ii) sublease any portion of any Site which is principally farmland or agricultural in nature for farm or agricultural purposes (the parties acknowledge that a portion of the Property Urbana is or may be, as of the Commencement Date, encumbered by such a farm/agricultural sublease), or (iii) sublease all or any portion of any Site to any Affiliate of Tenant. The parties agree that the square footage sublet under any sublease entered into pursuant to clause (ii) and/or (iii) of the preceding sentence shall not be counted towards the 20% square footage limitation described in clause (i) of such sentence. In conjunction with any sublease permitted herein, Tenant may grant to the subtenant thereunder rights of use and/or occupancy of the relevant Site which are not included in the sublease premises thereunder (such as parking rights, signage rights and roof rights). Tenant may enter into any sublease or assignment which requires Landlord’s consent hereunder before obtaining such consent, so long as the sublease or assignment in question contains terms providing that the same is expressly conditioned upon obtaining Landlord’s consent, and will not become effective until such consent not to be unreasonably withheld, conditioned or delayedis obtained. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, Event shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Notwithstanding the foregoing, Landlord’s prior written consent shall not be required if (i) immediately following a Corporate Control Event, the Tenant under this Lease (or any Person which then comprises Tenant) has a Credit Rating meeting the Investment Grade Criteria, or (ii) in connection with any Corporate Control Event: [**] Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, Landlord constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Other than Corporate Control Events which require Landlord’s consent as provided above, the direct or indirect transfer of interests in Tenant (or any Person which comprises Tenant) shall not constitute an assignment of this Lease and shall not require Landlord’s consent. Tenant agrees that that, if an assignment of this Lease is effected by a written instrument (as opposed to an assignment effected by a Corporate Control Event) the instrument by which any assignment or sublease to which Landlord consent consents is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a ** Confidential treatment has been requested with respect to certain portions of this exhibit. Omitted portions have been filed separately with the Securities and Exchange Commission. partial assignment or a subleaseassignment, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a subleaseassignment) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenantassignee. Any purported assignment or sublease without an which is effected by a written instrument containing that does not contain the foregoing provisions shall be void; provided that this sentence shall not apply to an assignment effected by or pursuant to a Corporate Control Event. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b25(a) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant sublessee shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (iiexcept as provided herein) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord Landlord, which consents consent shall not be unreasonably withheld, delayed, or conditioned, and (iiiii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord fifty percent (50% %) of Tenant’s net profit on any sublet or assignmentassignment (but the terms of this clause (ii) shall not apply to any net profit resulting from a Corporate Control Event). Solely for purposes of determining such Tenant’s net profit under clause (iii) aboveprofit, the following shall apply: . Tenant’s net profit shall be determined on a monthly quarterly basis and isis hereby defined as the amount by which all monthly payments from such subtenant or assignee paid to Tenant exceed the sum of (i) total quarterly Rent paid by Tenant which is attributable to the space sublet or assigned (as reasonably agreed to by Landlord and Tenant, and shall be generally based upon the improved portions of the Premises) plus (ii) the Quarterly Subtenant Allowance. The term “Quarterly Subtenant Allowance” means the result of (A) all reasonable out-of-pocket expenses paid by Tenant to third-parties in obtaining such sublease or assignment directly relating only to the portions of the Premises which is subject to such sublease or assignment (including, to the extent applicable, brokers fees, attorneys fees, and improvements to the Premises which shall only be made in accordance with the terms of this Lease) divided by (B) the total number of quarters in the term of the sublease or assignment. No sublet of an entire Site shall be permitted unless the rental payments from such subtenant to Tenant and paid by Tenant to Landlord pursuant to this paragraph 25(b) qualify as “rent from real property” under Section 856 of the Internal Revenue Code of 1986, as amended. Tenant shall provide Landlord with an executed copy of any assignment or sublease entered into promptly after full execution thereof (but, in the case of an assignment, only if such assignment is effected pursuant to a written instrument (as opposed to an assignment effected by a Corporate Control Event)).
Appears in 1 contract
Samples: Lease Agreement (Solo Cup CO)
Subletting Assignment. (a) Except as set forth in paragraph 25(b) belowprovided herein, Tenant shall not, directly or indirectly, without the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than TenantTenant and its agents, such consent not to be unreasonably withheldrepresentatives, conditioned or delayedemployees, directors, officers, shareholders, affiliates, consultants, independent contractors, permitted subtenants, licensees, invitees and permitted successors and assigns. This Except as provided herein, this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord. Notwithstanding the foregoing, or anything to the contrary contained in this Lease, the Tenant may, without the prior written consent of Landlord: (i) sublease up to twenty percent (20%) of the square footage of Improvements of any Site, (ii) sublease any portion of any Site which is principally farmland or agricultural in nature for farm or agricultural purposes (the parties acknowledge that a portion of the Property Urbana is or may be, as of the Commencement Date, encumbered by such a farm/agricultural sublease), or (iii) sublease all or any portion of any Site to any Affiliate of Tenant. The parties agree that the square footage sublet under any sublease entered into pursuant to clause (ii) and/or (iii) of the preceding sentence shall not be counted towards the 20% square footage limitation described in clause (i) of such sentence. In conjunction with any sublease permitted herein, Tenant may grant to the subtenant thereunder rights of use and/or occupancy of the relevant Site which are not included in the sublease premises thereunder (such as parking rights, signage rights and roof rights). Tenant may enter into any sublease or assignment which requires Landlord’s consent hereunder before obtaining such consent, so long as the sublease or assignment in question contains terms providing that the same is expressly conditioned upon obtaining Landlord’s consent, and will not become effective until such consent not to be unreasonably withheld, conditioned or delayedis obtained. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, Event shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Notwithstanding the foregoing, Landlord’s prior written consent shall not be required if (i) immediately following a Corporate Control Event, the Tenant under this Lease (or any Person which then comprises Tenant) has a Credit Rating meeting the Investment Grade Criteria, or (ii) in connection with any Corporate Control Event: (a) the Person which has acquired the assets or equity interests in question has contributed capital of not less than $200,000,000 of such Person’s funds (as either equity or explicitly subordinated debt) or paid no less than $200,000,000 for such equity interests and (b) immediately following such Corporate Control Event, Tenant and its Subsidiaries have a proforma Lease Adjusted Debt to Consolidated EBITDAR of not greater than five and one-half (5.5) to one (1) determined on a trailing twelve month basis giving effect to the Corporate Control Event and Tenant has presented evidence thereof satisfactory to Landlord of such facts (which evidence may include a certified statement of the sources of all funds used to acquire such assets or equity interests). Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, Landlord constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Other than Corporate Control Events which require Landlord’s consent as provided above, the direct or indirect transfer of interests in Tenant (or any Person which comprises Tenant) shall not constitute an assignment of this Lease and shall not require Landlord’s consent. Tenant agrees that that, if an assignment of this Lease is effected by a written instrument (as opposed to an assignment effected by a Corporate Control Event) the instrument by which any assignment or sublease to which Landlord consent consents is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a subleaseassignment, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a subleaseassignment) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenantassignee. Any purported assignment or sublease without an which is effected by a written instrument containing that does not contain the foregoing provisions shall be void; provided that this sentence shall not apply to an assignment effected by or pursuant to a Corporate Control Event. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b25(a) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant sublessee shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (iiexcept as provided herein) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord Landlord, which consents consent shall not be unreasonably withheld, delayed, or conditioned, and (iiiii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord fifty percent (50% %) of Tenant’s net profit on any sublet or assignmentassignment (but the terms of this clause (ii) shall not apply to any net profit resulting from a Corporate Control Event). Solely for purposes of determining such Tenant’s net profit under clause (iii) aboveprofit, the following shall apply: . Tenant’s net profit shall be determined on a monthly quarterly basis and isis hereby defined as the amount by which all monthly payments from such subtenant or assignee paid to Tenant exceed the sum of (i) total quarterly Rent paid by Tenant which is attributable to the space sublet or assigned (as reasonably agreed to by Landlord and Tenant, and shall be generally based upon the improved portions of the Premises) plus (ii) the Quarterly Subtenant Allowance. The term “Quarterly Subtenant Allowance” means the result of (A) all reasonable out-of-pocket expenses paid by Tenant to third-parties in obtaining such sublease or assignment directly relating only to the portions of the Premises which is subject to such sublease or assignment (including, to the extent applicable, brokers fees, attorneys fees, and improvements to the Premises which shall only be made in accordance with the terms of this Lease) divided by (B) the total number of quarters in the term of the sublease or assignment. No sublet of an entire Site shall be permitted unless the rental payments from such subtenant to Tenant and paid by Tenant to Landlord pursuant to this paragraph 25(b) qualify as “rent from real property” under Section 856 of the Internal Revenue Code of 1986, as amended. Tenant shall provide Landlord with an executed copy of any assignment or sublease entered into promptly after full execution thereof (but, in the case of an assignment, only if such assignment is effected pursuant to a written instrument (as opposed to an assignment effected by a Corporate Control Event)).
Appears in 1 contract
Subletting Assignment. (a) Except as set forth Tenant shall have the right to sublease at each Site not more than fifty percent (50%) of the rentable square footage of such Site without the prior consent of Landlord (a "PERMITTED SUBLEASE"), but subject to each other provision in this paragraph 25(b) below25 applicable to subleases, provided that the use of the subleased space by the subtenant under such sublease would be permitted by Section 3 hereof. Tenant shall not, directly or indirectly, without the prior written consent of LandlordLandlord and Mortgagee, which Landlord consent shall be based upon the credit, management, type of business and reputation, and historical operations of any proposed assignee or subtenant, and which Mortgagee consent shall not be unreasonably withheld, delayed or conditioned, assign this Lease or any interest herein, or any interest in Tenant, or or, other than pursuant to a Permitted Sublease, sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a)Lease, the occurrence an assignment of a Corporate Control Event, Tenant's interest in this Lease shall be deemed to have occurred upon the occurrence of any of the following: (i) a merger or consolidation of Tenant with another entity ("Merger"), (ii) the change of the owners of 50% of more of voting securities or economic benefits and burdens (including distributions) of Tenant within any twelve month period ("CHANGE OF CONTROL"), or (iii) the sale of all or substantially all the assets of Tenant to any party, provided, however, no consent by Landlord shall be an required to any assignment of this Lease caused by a Merger or Change of Control if the surviving Person in such Merger or the Person acquiring ownership or control in Tenant in such Change of Control, as applicable, has a Credit Rating of "A" or higher from both S&P and Moody's after such Merger or Change of Control. Notwithstanding the xxxxxxing, Tenant shall be permitted to assign or sublet Tenant's interest in this Lease only if the following conditions are satisfied:
(i) the assignee or subtenant is a (A) corporation, partnership, limited liability company or other entity which controls, is prohibited by controlled by, or is under common control of Tenant or (B) a wholly-owned subsidiary or affiliate of Tenant within the preceding paragraph unless Tenant obtains Landlord’s prior written consent meaning of such term as set forth abovein Rule 501 of Regulation D under the Federal Securities Act of 1933 and (ii) Tenant remains fully liable, as a primary obligor, under this Lease. Any Other than a subleasing pursuant to a Permitted Sublease, any of the foregoing prohibited acts without such prior written consent of Landlord, if required, Landlord and Mortgagee shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) Landlord consents in writing, if such consent is required, (ii) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, and (iiiii) no assignee or subtenant shall have a right further to assign or sublease.
(c) Unless and until expressly released by Landlord and Mortgagee, no assignment or sublease without whatsoever shall release Tenant from Tenant's obligations and liabilities under this Lease (which shall continue as the prior written consent obligations of a principal and not of a guarantor or surety) or alter the primary liability of Tenant to pay all Rent and to perform all obligations to be paid and performed by Tenant. The acceptance of Rent by Landlord which consents from any other person or entity shall not be unreasonably withhelddeemed to be a waiver by Landlord of any provision of this Lease. Consent to one assignment or sublease shall not be deemed consent to any subsequent assignment or sublease. If any assignee, delayedsubtenant or successor of Tenant defaults in the performance of any obligation to be performed by Tenant under this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant or successor. Landlord may consent to subsequent assignments or subleases or amendments or modifications to this Lease with assignees, subtenants or successor of Tenant, without notifying Tenant or any successor of Tenant and without obtaining any consent thereto from Tenant or any successor of Tenant, and such action shall not release Tenant from liability under this Lease.
(d) Tenant shall have no right to mortgage, grant a lien upon, encumber or otherwise finance Tenant's interest xxxxx xxxx Xease (provided that Tenant may make a general pledge of all of its assets pursuant to its revolving credit line facility) or record a lien upon Tenant's interest in the Premises under this Lease, and Tenant shall not permit, cause or suffer to be recorded in the real estate records of the county in which the Premises are located any mortgage, deed of trust, assignment, UCC financing statement or any other document granting, perfecting, or conditioned, and (iii) Tenant shall, only with respect to recording a sublease of an entire Site or an assignment of lien upon Tenant's interest in this Lease or interest in its entirety upon its receiptthe Premises under this Lease. Tenant shall not give any notice, remit or permit or cause any other party to give any notice, to Landlord 50% of any existing lien on or security interest in Tenant’s net profit on 's interest in this Lease or interest in the Premises under this Lease. Tenant shall not request that Landlord execute (nor shall Landlord have any sublet obligation to execute) any non-disturbance, attornment or assignment. Solely for purposes any other agreement in favor of determining such any party transacting any business or transaction with or related to Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is.
Appears in 1 contract
Samples: Lease Agreement (Egl Inc)
Subletting Assignment. (a) Except as set forth Subject to all of the rights of Landlord under the Master Lease and the restrictions contained in paragraph 25(b) belowthe Master Lease, Tenant Sublessee shall notbe entitled to assign this Sublease or to sublet all or any portion of the Premises, directly or indirectly, without subject to obtaining the prior written consent of LandlordSublessor, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such which consent shall not to be unreasonably withheldwithheld or delayed by Sublessor; provided however, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, it shall be deemed reasonable for Sublessor to be an deny its consent with respect to any sublease or assignment of this Lease which is prohibited by Sublease if Landlord does not consent to the preceding paragraph unless Tenant obtains Landlord’s prior written consent same. Except to the extent provided in the Master Lease, as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlordbetween Sublessor and Sublessee, if required, shall be void and shall, at the option of Landlord, constitute neither (i) an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform subletting of all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment an entity which is controlled by, controls or is under common control with Sublessee, or to a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale purchaser of all or substantially all of the assets of Sublessee or equity ownership of Tenant an entity which is controlled by, controls or its Affiliates is under common control with Sublessee; (whether ii) a transfer, by sale, merger, operation of law or otherwise) provided that , in connection with the Person merger, consolidation or other reorganization of Sublessee or of an entity which is controlled by, controls or is under common control with Sublessee; (iii) the resulting transferee on account use by any party funded by Sublessee; or (iv) the temporary use or occupancy of portions of the Premises by a party or parties in connection with the transaction of business with Sublessee or an entity which is controlled by, controls or is under common control with Sublessee, shall be a transfer requiring Sublessor's consent under this Section (but shall require the consent of Landlord under the terms of the Master Lease). In any event, Sublessee shall notify Sublessor of any such assignment, sublease or action or use and Sublessor shall coordinate, at Sublessee's expense, obtaining Landlord's consent thereto and no such assignment, sublease, action or use shall release Sublessee of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable its obligations under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)Sublease.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Samples: Sublease (Etoys Inc)
Subletting Assignment. (a) Except as Notwithstanding anything to the contrary set forth in paragraph 25(b) belowthis Lease, Tenant Lessee shall not, directly or indirectly, without the prior written consent of LandlordLessor, assign this Lease sublease any Leased Property or any interest hereinportion thereof except as set forth in the following sentence, or assign (including by way of merger, consolidation or change in control), transfer, mortgage, hypothecate, pledge or otherwise encumber its leasehold estate hereunder or any of its rights, interests or obligations hereunder and any attempted sublease, assignment, transfer, mortgage, hypothecation, pledge or encumbrance by Lessee shall be null and void. So long as no Event of Default shall have occurred and be continuing, Lessee may sublease a Leased Property to any Affiliate(s) of Lessee without Lessor's prior written consent provided, however, (i) each such sublease shall expressly be made subject to the provisions hereof, (ii) the term of any subletting shall not extend beyond the Term of this Lease, (iii) no sublease shall affect or reduce any obligation of the Lessee or right of the Lessor hereunder, (iv) all obligations of the Lessee hereunder shall continue in full force and effect as the obligations of a principal and not of a guarantor or surety, as though no subletting had been made, and (v) Lessee shall deliver to Lessor a copy of the sublease and such other agreements, instruments, certificates and opinions as may be reasonably requested by Lessor including, without limitation, an assignment of such sublease.
(b) Lessor may, at any time, without notice to, or the consent of, Lessee sell, assign, transfer or grant a security interest in Tenant, or sublease the Premises all or any part thereofof Lessor's rights, including obligations, title or interest in, to and under any Site, or permit the use or occupancy of the Premises Leased Property or any portion thereof, including any SiteGround Lease, by this Lease, and/or any Person other than TenantBasic Rent or Additional Rent payable under this Lease. Any entity to whom any such sale, assignment, transfer or grant of security interest is made is herein called an "Assignee" and any such consent not to sale, assignment, transfer or grant of security interest is herein called an "assignment". Upon execution and delivery of any such assignment, Lessor shall be unreasonably withheldreleased from its obligations hereunder thereafter arising, conditioned or delayed. This Lease shall notprovided, nor shall however, that if any interest herein, be assignable such assignment is made as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a)collateral security, the occurrence execution and delivery thereof shall not impair or diminish any obligations of Lessor hereunder. An Assignee may re-assign and/or grant a Corporate Control Eventsecurity interest in any of such rights, obligations, title or interest assigned to such Assignee. Lessee agrees to execute related acknowledgments and other documents that may be reasonably requested by Lessor or an Assignee. Lessor agrees that any such assignment will not materially change Lessee's duties or materially increase its burdens or risks hereunder. Each such assignment shall be deemed subject to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent Lessee's rights hereunder so long as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate no Event of Default that entitles Landlord has occurred and is continuing hereunder. Lessee shall be under no obligation to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any Assignee except upon written notice of such assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (from Lessor or, in the case of a partial assignment or a subleasereassignment, only insofar as such covenants relate from Assignee. Upon written notice to Lessee of an assignment, Lessee agrees to pay the portion of the Premises subject Basic Rent and Additional Rent to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall Assignee in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection accordance with the sale of instructions specified in such notice without any abatement, defense, setoff, counterclaim or recoupment whatsoever, and to otherwise comply with all notices, directions and demands which may be given by Lessor or substantially all such Assignee in accordance with the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions provisions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly may neither sublet nor assign the Premises or indirectly, any part thereof without the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease No sublease or sublease the Sites without Landlord’s consent to Tenant’s Affiliatesassignment hereunder, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess whether or not necessary consented to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions Landlord shall affect or reduce any obligations of this Lease), any leasehold mortgagee Tenant or subtenant shall comply with the applicable provisions rights of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to securehereunder, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (following any such assignment or sublease prohibited by subletting, all obligations of Tenant hereunder shall continue in full effect as the obligations of a principal and not of a guarantor or surety, as though no subletting or assignment had been made. Neither this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding Lease nor the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant term hereby demised shall be permitted mortgaged by Tenant, nor shall Tenant mortgage or pledge the interest of Tenant in and to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part portion thereof until an executed duplicate original or the rentals payable thereunder. Any such mortgage or pledge, and any such sublease or assignment made otherwise than as permitted by this Section 17, shall be void. Tenant shall, within 10 days after the execution of any such assignment sublease or subleaseassignment, deliver a conformed copy thereof to Landlord. Notwithstanding anything in compliance this Lease contained to the contrary, Tenant may, at any time, and without obtaining Landlord's consent but with paragraph 25(a), has been delivered prior written notice to Landlord, (ii) no assign its interest in this Lease or sublet the whole or any part of the Premises to any business organization affiliated with Tenant, or any business organization resulting from the consolidation or merger of Tenant with any other business organization or organizations, provided that the resulting company has a reputation and financial condition equal to or greater than Tenant and Tenant provides the financial and other information reasonably requested by Landlord regarding the assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and issublessee.
Appears in 1 contract
Samples: Lease Agreement (Guitar Center Inc)
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without Lessee may sublet the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises Property or any part thereof, including provided that each sublease shall expressly be made subject to the provisions of this Lease, and may assign its interest under this Lease. No such 21 19 sublease or assignment shall affect or reduce any Siteobligations of Lessee or rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the obligations of a principal and not of a guarantor or permit surety, as thought no subletting or assignment had been made. Neither this Lease nor the use term hereby demised shall be mortgaged by Lessee, nor shall Lessee mortgage or occupancy pledge the interest of Lessee in and to any sublease of the Premises Property or any portion thereofthereof or the rentals payable thereunder. Any such mortgage or pledge, including and any Site, such sublease or assignment made otherwise then as permitted by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a)18, the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless Lessee shall, within 10 days after the execution of any such sublease or assignment, deliver a conformed copy thereof to Lessor, and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor to any mortgage of the Property or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been madeits assignee.
(b) The requirements with respect to Landlord’s Lessor may mortgage, assign, convey or otherwise transfer its estate, right, title and interest hereunder or in the Property or any portion thereof without the consent set forth in paragraph 25(a) of Lessee. If any such assignment is made as collateral security, the execution and deliver thereof shall not apply with respect to in any assignment in connection with way impair or diminish any public offering obligations of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site Lessor under this Lease for more than 10% nor impose any of such obligations on the Sites covered assignee. Any estate, right, title or interest assigned as permitted by this Lease at such time paragraph 18(b) may be assigned and not more than three (3) Sites shall be subleased to reassigned in like manner by any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group)thereof.
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and is
Appears in 1 contract
Samples: Lease Agreement (SFG Capital Corp)
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant shall not, directly or indirectly, without Lessee may sublet the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises Leased Property or any portion thereof, including any Siteor assign its interest in this Lease, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate provided that:
(i) No Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease has occurred and is continuing on the date of such sublease or assignment;
(ii) Each sublease or assignment shall expressly be made subject to the provisions hereof; and
(iii) No sublease may extend beyond the then current Basic Term Expiration Date, except (A) a sublease may extend no later than the end of the term of the Year 20 Rent Reset Lease Amendment if such Rent Reset Lease Amendment has been duly executed by Lessee and Lessor and (B) a sublease may extend no later than the end of the term of the last Renewal Term with respect to which Lessee has validly exercised its right pursuant to paragraph (b) of Article 2.
(b) No such sublease or assignment shall affect or reduce any obligations of Lessee or any Guarantor, or the rights of Lessor hereunder, and all obligations of Lessee hereunder shall continue in full effect as the case obligations of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (principal and not liable merely as of a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if though no subletting or assignment or sublease had been made.
(bc) The requirements with respect Lessee shall, at least ten (10) days prior to Landlord’s consent set forth in paragraph 25(a) shall the execution of any such sublease or assignment, deliver to Lessor a certificate of an Executive Officer stating that such sublease or assignment does not apply with respect to any assignment in connection with any public offering adversely affect the fair market value of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by saleLeased Property, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use uses under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply assignment are consistent with the applicable provisions business uses of this Lease property located in the same general area as the Leased Property, and Tenant provides Landlord with notice of that the uses under such leasehold mortgage or sublease arrangement and otherwise complies will comply with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secureArticle 4 hereof, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior within ten (10) years days after such execution, a conformed copy thereof and of any short form lease or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, memorandum of lease which has been prepared for recording purposes.
(IId) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in Neither this Lease is held by iStar, then as a prior borrower nor the Term of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant Lease shall be permitted mortgaged by Lessee, nor shall Lessee mortgage or pledge the interest of Lessee in and to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) sublease of the Sites (thereby deleting Leased Property or any portion thereof or the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of rental payable thereunder. Any such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender groupor pledge, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions sublease or assignment not permitted by this Article 18, shall not be applicable to the other members of such lender group)void.
(ce) If Landlord consents Lessee shall pay as Additional Rent to Lessor on demand all reasonable costs and expenses of Lessor and Lessor's Mortgagee (including in-house or outside counsel attorneys' fees and expenses) in writing, reviewing or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject executing any instrument pursuant to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iii) above, the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isArticle 18.
Appears in 1 contract
Samples: Lease Agreement (Ipec Holdings Inc)
Subletting Assignment. (a) Lessee may not sublet the Premises in whole or in part without the prior written consent of Lessor, which consent shall not be unreasonably withheld. The making of any sublease shall not release or otherwise affect any of Lessee's obligations under this Lease.
(b) Except as set forth permitted pursuant to Section 13 of this Lease, Lessee shall not assign, transfer, or encumber this Lease, or any interest in paragraph 25(b) below, Tenant shall not, directly or indirectlythis Lease, without the prior written consent of LandlordLessor, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such which consent shall not to be unreasonably withheld, conditioned or delayed. This Lease Consent to an assignment shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an a consent to any subsequent assignment or a release of any of Lessee's obligations under this Lease which is prohibited by the preceding paragraph unless Tenant obtains Landlord’s prior written consent as set forth aboveLease. Any of the foregoing prohibited acts assignment without such prior written consent of Landlord, if required, shall be void and shall, at the option of LandlordLessor, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to terminate this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent shall not be unreasonably withheld, conditioned or delayed. Tenant may freely assign this Lease or sublease the Sites without Landlord’s consent to Tenant’s Affiliates, grant leasehold mortgages and sublease any Site to third parties, provided Tenant shall remain liable under this Lease; provided, however, that Tenant may not at any time have outstanding, with third parties, subleases of the entirety of a Site under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilities. Notwithstanding the foregoing, except for an assignment to an entity satisfying the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease to any Person where such Person, its parent or the Controlling party to such Person, (I) has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price equal to the net book value for tax purposes (effective immediately prior to the date of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents The sale or transfer of membership interests in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion Lessee representing control of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) Lessee shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, in compliance with paragraph 25(a), has been delivered to Landlord, (ii) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or deemed an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit this Section 14 requiring consent of Lessor unless the sale or transfer is made among Lessee's existing members or is the disposition of a membership interest upon the death of the member owning the interest.
(d) In the event of a voluntary assignment by Lessee of the DBOF Agreement or Lessee's rights or interest under clause the DBOF Agreement, pursuant to and in accordance with the DBOF Agreement, this Lease and Lessee's interest under this Lease shall also be assigned to Lessee's assignee, unless otherwise agreed by Lessor.
(iiie) aboveUpon prior written notice to Lessee, Lessor may assign its rights and interests under this Lease and in the following shall apply: Tenant’s net profit shall be determined on a monthly basis and isFacility to the State of Alaska or any entity created by the Lessor to manage, operate or finance the Facility.
Appears in 1 contract
Samples: Ground Lease
Subletting Assignment. (a) Except as set forth in paragraph 25(b) below, Tenant Subtenant shall not, directly not sublet the Premises or indirectly, assign this Sublease or any part thereof for any period of time without the prior written consent of Landlord, assign this Lease or any interest herein, or any interest in Tenant, or sublease the Premises or any part thereof, including any Site, or permit the use or occupancy of the Premises or any portion thereof, including any Site, by any Person other than Tenant, such consent not to be unreasonably withheld, conditioned or delayed. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law Master Landlord and without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed. For purposes of this paragraph 25(a), the occurrence of a Corporate Control Event, shall be deemed to be an assignment of this Lease which is prohibited by the preceding paragraph unless Tenant obtains LandlordSublandlord’s prior written consent. Such consent as set forth above. Any of the foregoing prohibited acts without such prior written consent of Landlord, if required, shall be void and shall, at the option of Landlord, constitute an immediate Event of Default that entitles Landlord to all remedies available at law and pursuant to this Lease. Tenant agrees that the instrument by which any assignment or sublease to which Landlord consent is accomplished shall expressly provide that the assignee or subtenant will perform all of the covenants to be performed by Tenant under this Lease (in the case of a partial assignment or a sublease, only insofar as such covenants relate to the portion of the Premises subject to such partial assignment or a sublease) as and when performance is due after the effective date of the assignment or sublease and that Landlord will have the right to enforce such covenants directly against such assignee or subtenant. Any purported assignment or sublease without an instrument containing the foregoing provisions shall be void. Unless and until expressly released by Landlord, Tenant shall in all cases remain primarily liable (and not liable merely as a guarantor or surety) for the performance by any assignee or subtenant of all such covenants, as if no assignment or sublease had been made.
(b) The requirements with respect to Landlord’s consent set forth in paragraph 25(a) shall not apply with respect to any assignment in connection with any public offering of securities of Tenant or its Affiliates or in connection with the sale of all or substantially all the assets or equity ownership of Tenant or its Affiliates (whether by sale, merger, operation of law or otherwise) provided that the Person which is the resulting transferee on account of any of the foregoing is a Person then (i) satisfying the Investment Grade Criteria or (ii) having a Net Worth of $100,000,000; provided, however, that from time to time if and when Tenant directly or indirectly fails to operate 400 or fewer bowling centers, such Net Worth requirement shall be $85,000,000. With respect to any assignment requiring Landlord’s consent, such consent Sublandlord shall not be unreasonably withheld, conditioned conditioned, or delayed. Tenant delayed except: (a) Sublandlord may freely assign this Lease or sublease the Sites without Landlord’s withhold in its absolute and sole discretion consent to Tenantany mortgage, hypothecation, pledge or other encumbrance of any interest in this Sublease or the Premises by Subtenant, whereby this Sublease or any interest therein becomes collateral for any obligation of Subtenant; and (b) Sublandlord may withhold in its absolute and sole discretion consent if Master Landlord does not consent to the proposed transfer. It is agreed that any of the following factors, or any other reasonable factor, will be reasonable grounds for Sublandlord deciding whether to consent to Subtenant’s Affiliatesrequest: (i) occupancy by any proposed assignee, grant leasehold mortgages subtenant or other transferee is not consistent with the maintenance and sublease operation of a Class A office building due to the nature of the proposed occupant's business or the manner of conducting its business or its experience or reputation in the community, (ii) occupancy by any Site proposed assignee, subtenant or other transferee is likely to third parties, provided Tenant shall cause disturbance to the normal use and occupancy of the Building by Sublandlord or other occupants; and (iii) notwithstanding that Subtenant or others remain liable under this Lease; providedSublease, howeverwhether the proposed assignee, that Tenant may not at any time have outstandingsubtenant or other transferee has a net worth, with third parties, subleases financial strength and credit record satisfactory to meet all of the entirety obligations of a Site Subtenant under this Lease for more than 10% of the Sites covered by this Lease at such time and not more than three (3) Sites shall be subleased to any single Person or Affiliated group (specifically, excluding any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to the Permitted Use or (ii) such portion is excess or not necessary to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this Lease), any leasehold mortgagee or subtenant shall comply with the applicable provisions of this Lease and Tenant provides Landlord with notice of such leasehold mortgage or sublease arrangement and otherwise complies with the requirements of this paragraph 25. Additionally, any leasehold mortgage shall only be permitted to secure, and be given as security for, Tenant’s, Guarantor’s or any of their affiliates’ primary credit facilities, and the leasehold mortgagee may only assign the Lease upon foreclosure or a transaction in lieu thereof (i) to an entity otherwise meeting the criteria for an assignee of the Lease as set forth in this Lease and (ii) to an entity either with management personnel having not less than five (5) years experience as an owner or operator of bowling centers or other entertainment facilities or that has engaged an operator or manager of such center with managers having not less than five (5) years experience managing bowling centers or other entertainment facilitiesSublease. Notwithstanding the foregoing, except for Sublandlord agrees that an assignment of this Sublease or a sub-subletting of all or part of the Premises to an entity satisfying (a) the Investment Grade Criteria, Tenant shall not, without Landlord’s prior written consent, assign this Lease parent of Subtenant or to any Person where a wholly owned subsidiary of Subtenant or of such Person, its parent or the Controlling party to such Personparent, (Ib) any corporation in whom or with which Subtenant may be merged or consolidated, or (c) any entity to whom Subtenant sells all or substantially all of its assets, provided that in each such instance such entity expressly assumes all of Subtenant’s obligations hereunder and has been convicted of a felony involving material financial wrong doing in the prior ten (10) years or is otherwise generally known to have acted in a manner generally known to have involved material financial wrong doing, or, (II) in the prior ten (10) years, filed for bankruptcy, or, (III) if as a prior tenant of Landlord in the prior ten (10) years was evicted from a property of Landlord, or, (IV) so long as the landlord’s interest in this Lease is held by iStar, then as a prior borrower of iStar, in the prior ten (10) years, committed an act or omission which created liability as “recourse liability” under its loan documents with iStar (any such assignment or sublease prohibited by this sentence is herein called, a “BB Prohibited Transaction”). Landlord shall, within five (5) Business Days of submission of any proposed assignees, provide Tenant with its reasonable determination of whether such transaction would be a BB Prohibited Transaction and a reasonable detailed explanation of why Landlord has made such determination if it is determined to be a BB Prohibited Transaction. Further, notwithstanding the foregoing, if Tenant desires to consummate an assignment which is prohibited solely on the basis it is BB Prohibited Transaction, Tenant shall be permitted to do so without Landlord’s consent only if (A) the sum of Guarantor’s Consolidated EBITDA plus Fixed Rent (for this Lease and Tenant’s Other Lease) to Fixed Rent (for this Lease and Tenant’s Other Lease) for the trailing 12 months shall be above 6:1 if Tenant then directly or indirectly operates greater than 400 bowling centers and 5:1 if Tenant is then operating 400 or fewer bowling centers as determined on a quarterly basis, and (B) this Lease and Tenant’s Other Lease are amended to (1) be consolidated into one lease (provided such change does not affect the accounting treatment for such Leases as an operating lease), (2) require that any renewal be for 100% (and not 90%) of the Sites (thereby deleting the provision of paragraph 4(c) hereof), and (3) provide that Landlord shall have the right to purchase the Bowling Equipment for a purchase price net worth at least equal to the net book value for tax purposes (effective immediately prior to the date greater of such amendment) effective upon such amendment. Additionally, if the holder of a leasehold mortgage is a lender group, the restrictions applicable to a BB Prohibited Transaction shall only apply to the lead lender, the agent for the lender group, and any participant in the lender group which has the right to control decisions of the lender group (and such restrictions shall not be applicable to the other members of such lender group).
(c) If Landlord consents in writing, or if no such consent is required as specifically set forth in paragraph 25(b) above, Tenant may complete the intended assignment or sublease subject to the following conditions: (i) no assignment or sublease (other than any minor sublease for a portion of a Site if either (i) the use under such sublease is supporting or ancillary to net worth of Subtenant on the Permitted Use date hereof or (ii) such portion is excess or not necessary the net worth of Subtenant immediately prior to Tenant’s business operations at the Site and the use is permitted by applicable laws and does not otherwise violate the other terms and conditions of this) shall be valid and no assignee or subtenant shall take possession of the Premises or any part thereof until an executed duplicate original of such assignment or sublease, transaction. With respect to the transactions described in compliance with paragraph 25(a), has been delivered to Landlord, clauses (iia) no assignee or subtenant shall have a right further to assign or sublease without the prior written consent of Landlord which consents shall not be unreasonably withheld, delayed, or conditioned, and (iii) Tenant shall, only with respect to a sublease of an entire Site or an assignment of this Lease in its entirety upon its receipt, remit to Landlord 50% of Tenant’s net profit on any sublet or assignment. Solely for purposes of determining such Tenant’s net profit under clause (iiib) above, the following shall apply: Tenant’s such net profit shall worth may be determined on a monthly consolidated basis with Subtenant’s affiliated entity. No subletting, assignment or other transfer under this Article 24 shall relieve Subtenant of any liability under this Sublease, and isno consent to any such transfer shall operate as a waiver of the necessity for consent to a subsequent transfer. Subtenant promptly shall provide Sublandlord with copies of any instruments of transfer.
Appears in 1 contract
