TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, without the prior written consent of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment of this Lease: (i) any assignment or transfer of any direct or indirect ownership interest in Tenant, in whole or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) of the direct or indirect ownership interests in Tenant are assigned or transferred, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1. (b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take. 1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended. Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion. Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns. Section 22.04 [***]1. Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleases.
Appears in 3 contracts
Samples: Master Land and Building Lease (Getty Realty Corp /Md/), Master Land and Building Lease (Getty Realty Corp /Md/), Master Land and Building Lease (Getty Realty Corp /Md/)
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23Article, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, or permit the Demised Properties or any portion of it to be used or occupied by others, or enter into a management contract or other arrangement whereby the Demised Properties shall be managed or operated by anyone other than the owner of the Tenant’s leasehold estate, without the prior written consent of Landlord in each instance, which such consent not to be unreasonably withheld or conditioned so long as Landlord has received all information reasonably requested. Notwithstanding the foregoing, Tenant may withhold assign or transfer the Lease in its reasonable discretion. Without limitation, any entirety or sublease all or a portion of the following Demised Properties, with prior written notice to Landlord, but without Landlord’s prior written consent, if such assignment, transfer or sublease is to a Tenant Affiliate (as defined below), in which case neither the Tenant nor the Guarantor shall be deemed released of its obligations under this Lease, provided, however, no consent shall be required only so long as such Tenant Affiliate which holds such interest in this Lease shall remain a Tenant Affiliate. In the event such Tenant Affiliate which holds such interest in the Lease ceases to be a Tenant Affiliate during the Lease Term, then such cessation shall be an assignment automatic Event of Default, subject to the terms of this Lease: . “Tenant Affiliate” shall mean any person or entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with Tenant (i) for purposes of this section, the term “control,” “controlled by” or “under common control with” means the power, direct or indirect, to direct or cause the direction of the management and policies of Tenant, whether through the ownership of voting stock, by contract, as trustee or executor, or otherwise; provided however, such terms shall not apply to any assignment or transfer ownership interest of any direct entity directly or indirect indirectly owning Buffets Holdings, Inc.). Any disposition of an ownership interest in Tenant, in whole either directly or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactionsindirectly, in such a manner that greater than fifty percent the ultimate beneficial owners of Tenant, through one or more tiers of ownership, transfer “control” of Tenant, shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, the following may be made with prior written notice to Landlord, but without Landlord’s prior written consent: (50%i) the sale or transfer of all or any portion of the direct or indirect equity ownership interests in Tenant are assigned of Guarantor (or transferredits parent) or all or substantially all of Guarantor’s (or its parents’) assets, provided that all of Tenant’s obligations hereunder and Guarantor’s obligations under the Guaranty shall be expressly assumed by the entity acquiring all or substantially all of the assets of Guarantor, (ii) an initial public offering (“IPO”) of stock in Guarantor, Buffets Holdings, Inc. and/or any encumbrance, pledge or hypothecation, subsidiary of either of them and (iii) the transfer of shares of stock in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownershipentity after its IPO. [***]1.
(b) If this Lease is assigned or transferred, or if Provided Tenant remains liable for all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting , Landlord shall not unreasonably withhold consent to a sublease or an assignment of this Lease for the generality of the forgoingpurposes permitted herein to an individual, Tenant expressly acknowledges and agrees that partnership or corporation if (i) any sublease such individual, partnership or corporation has, in the reasonable opinion of Landlord at least five (5) years experience in managing and operating restaurants, as well as a record of timely payment of obligations and compliance with respect to any Demised Property applicable laws; (ii) such individual, partnership or portion thereof entered into from corporation is commercially and after financially sound; (iii) the Commencement Date shall expressly provide that it is subject restaurant use meets the standards and subordinate to this Leasecriteria set forth in Article IV, and (ii), iv) in the event case of a proposed sublease, the subtenant has delivered to Landlord and any Landlord’s Lender, upon request, a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to Landlord and any Landlord’s Lender (to which Tenant shall not be required to be a party to the extent such agreement is also executed by Landlord’s Lender (provided, however, that Tenant may be required to execute a separate instrument evidencing its consent to and agreement with the provisions of such agreement)). Notwithstanding the foregoing, (x) after any such assignment of this Leaseor sublease, Tenant shall remain jointly and severally liable with the assignee for all of the its obligations under this Lease, Guarantor shall remain liable under the Guaranty, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted execute and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled a guaranty in form and substance reasonably acceptable to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion.
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 both Landlord and Tenant acknowledge (which shall contain surety and agree that (i) guarantor waivers similar to those contained in the leases set forth on Schedule 22.05 attached hereto and incorporated herein (Guaranty), whereby Tenant explicitly guarantees all of the “Subleases”) shall be deemed subleases assignee’s or subtenant’s obligations under this the Lease, and (y) Landlord may condition its consent to any sublease regarding the Demised Premises upon the sublease containing the following provisions, in form and substance acceptable to Landlord and Landlord’s Lender (collectively, the “Subordination and Attornment Provisions”): (i) that the sublease is subordinate in all respects to the Lease; (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe that in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration cancellation or earlier termination of this the Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults reason whatsoever or of Tenant occurring the surrender of the Lease by operation of law prior to the expiration date of the sublease, subtenant shall make full and complete attornment to Landlord under either the terms of the Lease or the terms of the sublease, in Landlord’s sole and absolute discretion, for the balance of the term of the sublease; (iii) that subtenant waives the provisions of any law then or thereafter in effect which may give subtenant any right of election to terminate the sublease or to surrender possession of the Demised Properties in the event any proceeding is brought by Landlord succeeds to terminate the interest Lease; and (iv) that all of the foregoing provisions in (i) through (iv) are for the benefit of both Tenant as landlord under and Landlord and Landlord is a third party beneficiary thereof. Notwithstanding the foregoing, Landlord and Tenant agree that upon the request of any subtenant, Landlord or Landlord’s Lender, Landlord, Tenant and such Subleasessubtenant will execute and deliver to each other a separate subordination, attornment and nondisturbance agreement regarding the sublease, in form and substance reasonably acceptable to all parties thereto.
Appears in 1 contract
Samples: Master Land and Building Lease (Ryan's Restaurant Leasing Company, LLC)
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as Tenant shall not assign, pledge, mortgage or otherwise explicitly provided transfer or encumber this lease or sublet any part or all of the Premises without Landlord’s prior written consent, which subject to the provisions of this Article, Landlord’s prior written consent shall not be unreasonably withheld. Notwithstanding Landlord’s consent to any assignment, transfer or sublease, Tenant and all guarantors of Tenant’s obligations hereunder shall remain liable to Landlord for the payment of rental then due and thereafter to become due and the performance of all other obligations of Tenant hereunder for the balance of the term hereof. If Landlord consents to an assignment of this Lease, and the assignee assumes all of the Tenant’s obligations hereunder, Tenant and each guarantor of Tenant’s obligations hereunder shall nonetheless not be released from their obligations hereunder and under any guaranty of this Lease. Landlord’s consent to any of the foregoing shall not constitute a consent of any other assignment, pledge, mortgage, encumbrance, transfer or sublease. If this Lease is assigned, or if the Premises or any part thereof are subleased or occupied by any person other than Tenant, whether with or without Landlord’s consent, Landlord may collect from the assignee, sublessee or occupant, any rental or other charges payable by Tenant under this Lease, and apply the amount collected to the rental and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or occupant, nor, a release of Tenant from the performance by Tenant of this Lease. If Landlord shall approve any assignment, subletting or other transfer of Tenant’s interest in this Article 22 Lease, then Tenant shall reimburse Landlord for Landlord’s reasonable legal fees and Article 23, neither Tenant, nor other reasonable out of pocket expenses incurred in connection with reviewing Tenant’s successors request for such approval and the drafting and preparation of appropriate documentation. Any assignment of this Lease or assigns, shall assign or transfer, in whole or in part, sublease of the Premises by operation of Law law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, otherwise without the prior written consent of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment of this Lease: (i) any assignment or transfer of any direct or indirect ownership interest in Tenant, in whole or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) of the direct or indirect ownership interests in Tenant are assigned or transferred, null and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant void and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion.
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its Landlord’s sole option, have the right to succeed to the interest constitute an event of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleasesdefault hereunder.
Appears in 1 contract
Samples: Lease Agreement (Pharmaceutical Product Development Inc)
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, without the prior written consent of Landlord in each instance, which Landlord may withhold be granted or withheld by Landlord, in its reasonable discretion, in accordance with the provisions of this Section 22.01, and subject, in each case, to the provisions of Section 22.01(c). Without limitation, any Any purported sublease or assignment in violation of the following this Section 22 shall be deemed an assignment of null and void. Notwithstanding anything to the contrary contained in this Lease: , provided that there shall be no Event of Default, Tenant shall have the right, without the prior written consent of Landlord, to (i1) assign this Lease to an Affiliate of Tenant or to any entity with which Tenant may merge or consolidate or to which Tenant may sell all or substantially all of its assets or capital stock so long as (A) Landlord shall have received a notice of such assignment or transfer of any direct or indirect ownership interest in from Tenant, in whole or in part, (B) the assignee assumes by operation written instrument reasonably satisfactory to Landlord all of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in Tenant’s obligations under this Lease and (C) such assignment is for a manner that greater than fifty valid business purpose and not to avoid any obligations under this Lease and (2) sublease up to thirty percent (5030%) of the direct gross leasable area of the Demised Properties so long as (A) the permitted use under the sublease is limited to the operation of a Permitted Use, (B) the term of the sublease, including any extension options, does not (and cannot) extend beyond the scheduled Lease Term (or indirect ownership interests in any early termination of this Lease) and (C) Tenant are assigned remains primarily liable for the obligations under this Lease (each, a “Preapproved Sublet”). In the event Tenant sells, conveys or transferredleases all or substantially all of its assets to any Person, Tenant shall assign this Lease to such Person, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation such Person shall assume all of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1’s obligations hereunder.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii)that, in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1(c) Except as expressly permitted by clause (a)(1) and (a)(2) of Section 22.01 above, if Tenant desires to assign this Lease , whether by operation of law or otherwise (each a “Non-Preapproved Assignment”), to a Person (“Non-Preapproved Assignee”) then Tenant shall, not less than thirty (30) days prior to the date on which it desires to make a Non-Preapproved Assignment, submit to Landlord information regarding the following with respect to the Non-Preapproved Assignee and the Non-Preapproved Assignment (collectively, the “Review Criteria”): (a) the proposed effective date of the Non-Preapproved Assignment, (b) all of the terms of the proposed Non-Preapproved Assignment and the consideration therefor, (c) the name, address and business of the proposed Non-Preapproved Assignee, (d) information concerning the character of the Non-Preapproved Assignee (including current financial statements thereof certified by an officer, partner or owner thereof, business credit and personal references and a description of the history of the Non-Preapproved Assignee), and (e) proposed use of the Demised Properties by the Non-Preapproved Assignee. [***] Indicates material that has been omitted Landlord shall review such information and for which confidential treatment has been requestedshall approve or disapprove the Non-Preapproved Assignee and the Non-Preapproved Assignment no later than twenty (20) days following receipt of all such information, and Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment. All If a response is not received by Tenant by the expiration of such omitted material has been filed with the Securities twenty (20) day period, such Non-Preapproved Assignee and Exchange Commission Non-Preapproved Assignment shall be deemed disapproved.
(d) Other than pursuant to Rule 24b-2 under Preapproved Sublets, at no time during the Securities Lease Term shall subleases exist for more than thirty percent (30%) of the gross leasable area of the Demised Properties without the prior written consent of Landlord, which consent shall be granted or withheld based on a review of the Review Criteria as they relate to the proposed sublessee and Exchange Act the terms of 1934, as amendedthe proposed sublease. Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreementagreement promptly (but no later than ten (10) days) following execution and delivery thereof. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion, taking into consideration the factors set forth in Section 22.01(c).
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
. Section 22.04 [***Intentionally Omitted]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleases.
Appears in 1 contract
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23Article, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law law or otherwise, this Lease, or sublet the Demised PropertiesProperty, in whole or in part, or permit the Demised Property or any portion of it to be used or occupied by others, or enter into a management contract or other arrangement whereby the Demised Property shall be managed or operated by anyone other than the owner of the Tenant’s leasehold estate, without the prior written consent of Landlord in each instance, which such consent not to be unreasonably withheld or conditioned so long as Landlord has received all information reasonably requested. Notwithstanding the foregoing, Tenant may withhold assign or transfer the Lease in its reasonable discretion. Without limitation, any entirety or sublease all or a portion of the following Demised Property, with prior written notice to Landlord, but without Landlord’s prior written consent, if such assignment, transfer or sublease is to a Tenant Affiliate (as defined below), in which case neither the Tenant nor the Guarantor shall be deemed released of its obligations under this Lease, provided, however, no consent shall be required only so long as such Tenant Affiliate which holds such interest in this Lease shall remain a Tenant Affiliate. In the event such Tenant Affiliate which holds such interest in the Lease ceases to be a Tenant Affiliate during the Lease Term, then such cessation shall be an assignment automatic Event of Default, subject to the terms of this Lease: . “Tenant Affiliate” shall mean any person or entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with Tenant (i) for purposes of this section, the term “control,” “controlled by” or “under common control with” means the power, direct or indirect, to direct or cause the direction of the management and policies of Tenant, whether through the ownership of voting stock, by contract, as trustee or executor, or otherwise; provided however, such terms shall not apply to any assignment or transfer ownership interest of any direct entity directly or indirect indirectly owning Buffets Holdings, Inc.). Any disposition of an ownership interest in Tenant, in whole either directly or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactionsindirectly, in such a manner that greater than fifty percent the ultimate beneficial owners of Tenant, through one or more tiers of ownership, transfer “control” of Tenant, shall be deemed to be an assignment of this Lease. Notwithstanding the foregoing, the following may be made with prior written notice to Landlord, but without Landlord’s prior written consent: (50%i) the sale or transfer of all or any portion of the direct or indirect equity ownership interests in Tenant are assigned of Guarantor (or transferredits parent) or all or substantially all of Guarantor’s (or its parents’) assets, provided that all of Tenant’s obligations hereunder and Guarantor’s obligations under the Guaranty shall be expressly assumed by the entity acquiring all or substantially all of the assets of Guarantor, (ii) an initial public offering (“IPO”) of stock in Guarantor, Buffets Holdings, Inc. and/or any encumbrance, pledge or hypothecation, subsidiary of either of them and (iii) the transfer of shares of stock in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownershipentity after its IPO. [***]1.
(b) If this Lease is assigned or transferred, or if Provided Tenant remains liable for all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting , Landlord shall not unreasonably withhold consent to a sublease or an assignment of this Lease for the generality of the forgoingpurposes permitted herein to an individual, Tenant expressly acknowledges and agrees that partnership or corporation if (i) any sublease such individual, partnership or corporation has, in the reasonable opinion of Landlord at least five (5) years experience in managing and operating restaurants, as well as a record of timely payment of obligations and compliance with respect to any Demised Property applicable laws; (ii) such individual, partnership or portion thereof entered into from corporation is commercially and after financially sound; (iii) the Commencement Date shall expressly provide that it is subject restaurant use meets the standards and subordinate to this Leasecriteria set forth in Article IV, and (ii), iv) in the event case of a proposed sublease, the subtenant has delivered to Landlord and any Landlord’s Lender, upon request, a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to Landlord and any Landlord’s Lender (to which Tenant shall not be required to be a party to the extent such agreement is also executed by Landlord’s Lender (provided, however, that Tenant may be required to execute a separate instrument evidencing its consent to and agreement with the provisions of such agreement)). Notwithstanding the foregoing, (x) after any such assignment of this Leaseor sublease, Tenant shall remain jointly and severally liable with the assignee for all of the its obligations under this Lease, Guarantor shall remain liable under the Guaranty, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted execute and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled a guaranty in form and substance reasonably acceptable to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion.
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 both Landlord and Tenant acknowledge (which shall contain surety and agree that (i) guarantor waivers similar to those contained in the leases set forth on Schedule 22.05 attached hereto and incorporated herein (Guaranty), whereby Tenant explicitly guarantees all of the “Subleases”) shall be deemed subleases assignee’s or subtenant’s obligations under this the Lease, and (y) Landlord may condition its consent to any sublease regarding the Demised Premises upon the sublease containing the following provisions, in form and substance acceptable to Landlord and Landlord’s Lender (collectively, the “Subordination and Attornment Provisions”): (i) that the sublease is subordinate in all respects to the Lease; (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe that in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration cancellation or earlier termination of this the Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults reason whatsoever or of Tenant occurring the surrender of the Lease by operation of law prior to the expiration date of the sublease, subtenant shall make full and complete attornment to Landlord under either the terms of the Lease or the terms of the sublease, in Landlord’s sole and absolute discretion, for the balance of the term of the sublease; (iii) that subtenant waives the provisions of any law then or thereafter in effect which may give subtenant any right of election to terminate the sublease or to surrender possession of the Demised Property in the event any proceeding is brought by Landlord succeeds to terminate the interest Lease; and (iv) that all of t he foregoing provisions in (i) through (iv) are for the benefit of both Tenant as landlord under and Landlord and Landlord is a third party beneficiary thereof. Notwithstanding the foregoing, Landlord and Tenant agree that upon the request of any subtenant, Landlord or Landlord’s Lender, Landlord, Tenant and such Subleasessubtenant will execute and deliver to each other a separate subordination, attornment and nondisturbance agreement regarding the sublease, in form and substance reasonably acceptable to all parties thereto.
Appears in 1 contract
Samples: Master Land and Building Lease (Ryan's Restaurant Leasing Company, LLC)
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, without the prior written consent of Landlord in each instance, which Landlord may withhold be granted or withheld by Landlord, in its reasonable discretion, in accordance with the provisions of this Section 22.01, and subject, in each case, to the provisions of Section 22.01(c). Without limitation, any Any purported sublease or assignment in violation of the following this Section 22 shall be deemed an assignment of null and void. Notwithstanding anything to the contrary contained in this Lease: , provided that there shall be no Event of Default, Tenant shall have the right, without the prior written consent of Landlord, to (i1) assign this Lease to an Affiliate of Tenant or to any entity with which Tenant may merge or consolidate or to which Tenant may sell all or substantially all of its assets or capital stock so long as (A) Landlord shall have received a notice of such assignment or transfer of any direct or indirect ownership interest in from Tenant, in whole or in part, (B) the assignee assumes by operation written instrument reasonably satisfactory to Landlord all of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in Tenant’s obligations under this Lease and (C) such assignment is for a manner that greater than fifty valid business purpose and not to avoid any obligations under this Lease and (2) sublease up to thirty percent (5030%) of the direct gross leasable area of the Demised Properties so long as (A) the permitted use under the sublease is limited to the operation of a Permitted Use, (B) the term of the sublease, including any extension options, does not (and cannot) extend beyond the scheduled Lease Term (or indirect ownership interests in any early termination of this Lease) and (C) Tenant are assigned remains primarily liable for the obligations under this Lease (each, a “Preapproved Sublet”). In the event Tenant sells, conveys, transfers or transferredleases all or substantially all of its assets to any Person, Tenant shall assign this Lease to such Person, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation such Person shall assume all of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1’s obligations hereunder.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii)that, in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1(c) Except as expressly permitted by clause (a)(1) and (a)(2) of Section 22.01 above, if Tenant desires to assign this Lease, whether by operation of law or otherwise (each a “Non-Preapproved Assignment”), to a Person (“Non-Preapproved Assignee”) then Tenant shall, not less than thirty (30) days prior to the date on which it desires to make a Non-Preapproved Assignment, submit to Landlord information regarding the following with respect to the Non-Preapproved Assignee and the Non-Preapproved Assignment (collectively, the “Review Criteria”): (a) the proposed effective date of the Non-Preapproved Assignment, (b) all of the terms of the proposed Non-Preapproved Assignment and the consideration therefor, (c) the name, address and business of the proposed Non-Preapproved Assignee, (d) information concerning the character of the Non-Preapproved Assignee (including current financial statements thereof certified by an officer, partner or owner thereof, business credit and personal references and a description of the history of the Non-Preapproved Assignee), and (e) proposed use of the Demised Properties by the Non-Preapproved Assignee. [***] Indicates material that has been omitted Landlord shall review such information and for which confidential treatment has been requestedshall approve or disapprove the Non-Preapproved Assignee and the Non-Preapproved Assignment no later than twenty (20) days following receipt of all such information, and Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment. All If a response is not received by Tenant by the expiration of such omitted material has been filed with the Securities twenty (20) day period, such Non-Preapproved Assignee and Exchange Commission Non-Preapproved Assignment shall be deemed disapproved.
(d) Other than pursuant to Rule 24b-2 under Preapproved Sublets, at no time during the Securities Lease Term shall subleases exist for more than thirty percent (30%) of the gross leasable area of the Demised Properties without the prior written consent of Landlord, which consent shall be granted or withheld based on a review of the Review Criteria as they relate to the proposed sublessee and Exchange Act the terms of 1934, as amendedthe proposed sublease. Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreementagreement promptly (but no later than ten (10) days) following execution and delivery thereof. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion, taking into consideration the factors set forth in Section 22.01(c).
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 22.04 attached hereto and incorporated herein (the “Existing Subleases”) shall be deemed subleases under this LeasePreapproved Sublets, and (ii) all rights and obligations of the landlord under the Existing Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Existing Subleases.
Appears in 1 contract
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided Tenant shall not assign, in whole or in part, this Article 22 and Article 23Lease, neither Tenant, nor Tenant’s successors or assigns, shall assign or transferallow it to be assigned, in whole or in part, by operation of Law law or otherwiseotherwise or mortgage, this Leaseencumber, or pledge the same, or sublet the Demised PropertiesLeased Premises, in whole or in part, without or suffer or permit the prior written consent occupation of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment of this Lease: (i) any assignment or transfer of any direct or indirect ownership interest in Tenant, in whole or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) of the direct or indirect ownership interests in Tenant are assigned or transferred, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied thereof by any party other than Tenantparty, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld, except Tentant may assign this Lease if Tenant undergoes a change of control. In no event shall any such assignment or sublease ever release Tenant or any guarantor from any obligation or liability hereunder. The consent by Landlord may withhold in its reasonable discretionto any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting.
Section 22.03 Subject (b) If Tenant desires to assign or sublet all or any part of the Leased Premises to any party, it shall so notify Landlord at least thirty days in advance of the date on which Tenant desires to make such assignment or sublease. Tenant will simultaneously with such request give Landlord (i) the name and address of the proposed assignee or subtenant, (ii) the terms of the proposed assignment or sublease, (iii) reasonably satisfactory and complete information about the nature, financial condition, business and business history of the proposed assignee or subtenant, and its proposed initial use of the Leased Premises, and (iv) a fee in the amount of $1,000.00 to reimburse Landlord for all its expenses including, without limitation, reasonable attorneys fees associated with Tenant’s request to assign, sublet or otherwise encumber the Leased Premises under the terms of the Lease. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. Within fifteen days after Landlord’s receipt of Tenant’s proposed assignment or sublease and all required information concerning the proposed sublessee or assignee, Landlord shall have the following options: (1) as to a requested sublease with a sublease term that coincides with ninety-five percent or more of the remaining term of this Lease, cancel this Lease as to the Leased Premises or portion thereof proposed to be sublet (provided, however, that Tenant shall be binding uponhave ten (10) days to nullify Landlord’s cancellation of this Lease by written notice to Landlord that it is withdrawing the sublease request); (2) consent to the proposed assignment or sublease, enforceable byand, if the rent due and payable by any assignee or sublessee under any such permitted assignment or sublease (or a combination of the rent payable under such assignment or sublease plus any bonus or any other consideration or any payment incident thereto) exceeds the rent payable under this Lease for such space, Tenant shall pay to Landlord all such excess rent and other excess consideration, less Tenant’s reasonable expenses incurred in connection with such subletting, including without limitation, reasonable brokerage commissions, improvements allowances, and inure alteration costs, within ten days following receipt thereof by Tenant; or (3) refuse, in Landlord’s reasonable judgment, to consent to the benefit of the parties hereto and their respective heirsproposed assignment or sublease, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) which refusal shall be deemed subleases under this Leaseto have been exercised unless Landlord gives Tenant written notice providing otherwise. Upon the occurrence of an event of default, and (ii) if all rights and obligations or any part of the landlord under the SubleasesLeased Premises are then assigned or sublet, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against addition to any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of other remedies provided by this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shallor provided by law may, at its option, have collect directly from the right assignee or sublessee all rents becoming due to succeed to Tenant by reason of the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that assignment or sublease. Any collection directly by Landlord from the assignee or sublessee shall not be liable for any defaults construed to constitute a novation or a release of Tenant occurring prior or any guarantor from the further performance of its obligations under this Lease. Tenant shall deliver to Landlord within twenty (20) days after any assignment or subletting a copy of the date executed assignment or sublease agreement. Any assignment or sublease shall provide that Landlord succeeds the assignee or subtenant shall comply with all applicable terms and conditions of this Lease to be performed by Tenant hereunder. The permitted use of the interest of Tenant as landlord under such SubleasesLeased Premises shall not change in connection with any assignment or sublease.
Appears in 1 contract
Samples: Lease Agreement (AxoGen, Inc.)
TENANT ASSIGNMENT AND SUBLETTING. (a) Except as Tenant shall not assign, pledge, mortgage or otherwise explicitly provided transfer or encumber this lease or sublet any part or all of the Premises without Landlord's prior written consent, which subject to the provisions of this Article, Landlord's prior written consent shall not be unreasonably withheld. Notwithstanding Landlord's consent to any assignment, transfer or sublease, Tenant and all guarantors of Tenant's obligations hereunder shall remain liable to Landlord for the payment of rental then due and thereafter to become due and the performance of all other obligations of Tenant hereunder for the balance of the term hereof. If Landlord consents to an assignment of this Lease, and the assignee assumes all of the Tenant's obligations hereunder, Tenant and each guarantor of Tenant's obligations hereunder shall nonetheless not be released from their obligations hereunder and under any guaranty of this Lease. Landlord's consent to any of the foregoing shall not constitute a consent of any other assignment, pledge, mortgage, encumbrance, transfer or sublease. If this Lease is assigned, or if the Premises or any part thereof are subleased or occupied by any person other than Tenant, whether with or without Landlord's consent, Landlord may collect from the assignee, sublessee or occupant, any rental or other charges payable by Tenant under this Lease, and apply the amount collected to the rental and other charges herein reserved, but such collection by Landlord shall not be deemed an acceptance of the assignee, sublessee or occupant, nor, a release of Tenant from the performance by Tenant of this Lease. If Landlord shall approve any assignment, subletting or other transfer of Tenant's interest in this Article 22 Lease, then Tenant shall reimburse Landlord for Landlord's reasonable legal fees and Article 23, neither other reasonable out of pocket expenses incurred in connection with reviewing Tenant, nor Tenant’s successors 's request for such approval and the drafting and preparation of appropriate documentation. Any assignment of this Lease or assigns, shall assign or transfer, in whole or in part, sublease of the Premises by operation of Law law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, otherwise without the prior written consent of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment of this Lease: (i) any assignment or transfer of any direct or indirect ownership interest in Tenant, in whole or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) of the direct or indirect ownership interests in Tenant are assigned or transferred, null and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant void and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion.
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its Landlord's sole option, have the right to succeed to the interest constitute an event of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleasesdefault hereunder.
Appears in 1 contract
Samples: Lease Agreement (New Focus Inc)
TENANT ASSIGNMENT AND SUBLETTING. (a) A. Except as otherwise explicitly expressly provided in herein, Tenant may not assign this Article 22 and Article 23Lease or enter into a sublease for all or any portion of the Demised Premises without Landlord’s prior written consent, neither Tenantwhich consent shall not be unreasonably withheld, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Leaseconditioned, or sublet delayed. In the Demised Propertiesevent Landlord shall fail to respond within thirty (30) days to any written request for consent to an assignment or subletting, in whole or in part, without the prior written such consent of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment to have been given.
B. The provisions of this Lease: (i) any assignment or Section 14 shall not apply to the transfer of any direct stock in connection with a merger or indirect ownership interest in consolidation of Tenant and another legal entity (e.g. corporation, limited partnership, etc.), provided that Tenant’s successor shall, in whole or in partas a result of such reorganization, by operation of Law or otherwise, regardless be legally obligated to pay Rent and all of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) charges due hereunder and to perform all of the direct or indirect ownership interests in Tenant are assigned or transferredterms, covenants, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, provisions to be performed by operation of Law or otherwise, of this Lease or any interest Tenant. This Section 14 shall also not apply in the leasehold estate created by this Lease, event Tenant offers its shares to the public pursuant to a registered securities offering or for the transfer of any direct or indirect ownership interest in stock as part of a “financing” vehicle which otherwise does not significantly alter the management and control of Tenant, regardless of the number of tiers of ownership. [***]1.
(b) If this Lease is assigned or transferred, or if all or C. Notwithstanding any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected provision to the Rent reserved contrary set forth in this Lease, but no such assignmentthe transfer of stock among the current stockholders of Tenant, sublettinga transfer of stock among the current stockholders of Tenant and their immediate families (i.e. spouses, occupancy parents, brothers, sisters, children, grandchildren or collection shall be deemed a waiver any spouse of any covenant such parent, brother, sister, child or condition grandchild), a transfer of this Lease stock by will or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenantdevise, or a release by Landlord transfer of stock to any employee, officer or director of Tenant from shall not constitute an assignment for the performance or further performance by Tenant purposes of its obligations under this Lease. Without limiting .
D. Notwithstanding any other provision to the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), contrary set forth in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable have the right to assign this Lease or sublet the Demised Premises, without Landlord’s consent, to any firm, person, corporation, partnership, or other entity now or hereafter controlled by, in control of, or under common control with Tenant.
E. In the assignee for event that Tenant assigns or sublets all or a portion of its interest in the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this LeaseDemised Premises, Tenant shall remain primarily fully liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities terms and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion.
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination conditions of this Lease with respect to any applicable Demised Propertyduring the remainder of the Base Term or Option Period, thenas applicable, subject to Section 22.01(b), Landlord shall, of the Lease in effect at its option, have the right to succeed to the interest time of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleasessaid assignment or subletting.
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TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, without the prior written consent of Landlord in each instance, which Landlord may withhold in its reasonable discretion. Without limitation, any of the following shall be deemed an assignment of this Lease: (i) any assignment or transfer of any direct or indirect ownership interest in Tenant, in whole or in part, by operation of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in such a manner that greater than fifty percent (50%) of the direct or indirect ownership interests in Tenant are assigned or transferred, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii), in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignmentnot assign, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1. [***] Indicates material that has been omitted and for which confidential treatment has been requested. All such omitted material has been filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities and Exchange Act of 1934, as amended.
Section 22.02 Upon any sublease or assignment permitted as provided in encumber this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreement. In no event shall Tenant be entitled to amend, extend or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof Lease without the prior written consent of Landlord, and shall not sublet or allow any other tenant to come in, with or under Tenant without like prior written consent, which consent shall not be unreasonably withheld; provided, however, Tenant may assign this Lease to its parent company, Safeguard Scientifics, Inc., or any corporation resulting from the merger or consolidation with Tenant, without Landlord's consent. Except for a corporate tenant whose stock is traded on the New York or American Stock Exchange or on the "over the counter" market, a transfer of any of Tenant's stock or a transfer or change of "control" of Tenant or a change in the composition of the persons or entities owning any interest in any non-corporate tenant shall be deemed as assignment for the purposes of this paragraph. "Control" shall mean, with respect to a corporation, the ownership, directly, directly or indirectly, of stock possessing, or the right to exercise, at least 25% of the total combined voting power of all classes of the controlled corporation's stock issued, outstanding, directly or indirectly, of at least 25% of all legal and equitable interests therein. If Tenant desires the consent of Landlord to sublease or assign, Tenant must submit the sublease or assignment to Landlord for its approval, together with the following documents: (a) a complete financial statement of the subtenant or assignee with an authorization to verify the same; (b) a declaration by the subtenant or assignees as to the type of business to be carried out and the number of employees to occupy the Demised Premises; (c) payment of a $300.00 fee for processing and approval of the sublease or assignment documents; and (d) proof of payment of all leasing commissions, if applicable. Consent of Landlord to one assignment or subletting of the Demised Premises or any portion thereof for any use which will violate the exclusive use rights or prohibited use restrictions granted to any other tenant in the Building. Any assignment or subletting, notwithstanding the consent of the Landlord, shall not in any manner release Tenant herein from its continued liability for the performance of the provisions of this Lease and any amendments or modifications thereto. In addition, the assignee shall agree in writing (a copy of which shall be delivered to Landlord) to assume all of Tenant's obligations under this Lease. The acceptance of any rental payments by Landlord from any alleged assignee shall not constitute approval of the assignment of this Lease by Landlord. Tenant expressly acknowledges that Landlord may withhold refuse to give its consent to any proposed assignment or subletting if Landlord determines in its reasonable discretion.
Section 22.03 Subject to good faith that Landlord's interest in the terms of this Lease, this Lease shall Demised Premises or the Building would be binding upon, enforceable adversely affected by, and inure to the benefit of the parties hereto and their respective heirsamong other things, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (financial condition, credit-worthiness or business reputation of the “Subleases”) shall be deemed subleases under this Lease, and proposed assignee or subtenant; (ii) all rights and the proposed use of the Demised Premises by, or business of, the proposed assignee or subtenant; (iii) the tenant mix of the Building; or (iv) the obligations of Landlord and/or the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant other tenants of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such SubleasesBuilding.
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TENANT ASSIGNMENT AND SUBLETTING. (a) Except as otherwise explicitly provided in this Article 22 and Article 23, neither Tenant, nor Tenant’s successors or assigns, shall assign or transfer, in whole or in part, by operation of Law or otherwise, this Lease, or sublet the Demised Properties, in whole or in part, without the prior written consent of Landlord in each instance, which Landlord may withhold be granted or withheld by Landlord, in its reasonable discretion, in accordance with the provisions of this Section 22.01, and subject, in each case, to the provisions of Section 22.01(c). Without limitation, any Any purported sublease or assignment in violation of the following this Section 22 shall be deemed an assignment of null and void. Notwithstanding anything to the contrary contained in this Lease: , provided that there shall be no Event of Default, Tenant shall have the right, without the prior written consent of Landlord, to (i1) assign this Lease to an Affiliate of Tenant or to any entity with which Tenant may merge or consolidate or to which Tenant may sell all or substantially all of its assets or capital stock so long as (A) Landlord shall have received a notice of such assignment or transfer of any direct or indirect ownership interest in from Tenant, in whole or in part, (B) the assignee assumes by operation written instrument reasonably satisfactory to Landlord all of Law or otherwise, regardless of the number of tiers of ownership, in one or more transactions, in Tenant’s obligations under this Lease and (C) such assignment is for a manner that greater than fifty valid business purpose and not to avoid any obligations under this Lease and (2) sublease up to thirty percent -25- A&R MASTER LAND AND BUILDING LEASE ACTIVE 230595713 (5030%) of the direct gross leasable area of the Demised Properties so long as (A) the permitted use under the sublease is limited to the operation of a Permitted Use, (B) the term of the sublease, including any extension options, does not (and cannot) extend beyond the scheduled Lease Term (or indirect ownership interests in any early termination of this Lease) and (C) Tenant are assigned remains primarily liable for the obligations under this Lease (each, a “Preapproved Sublet”). In the event Tenant sells, conveys, transfers, or transferredleases all or substantially all of its assets to any Person, Tenant shall assign this Lease to such Person, and (ii) any encumbrance, pledge or hypothecation, in whole or in part, by operation such Person shall assume all of Law or otherwise, of this Lease or any interest in the leasehold estate created by this Lease, or of any direct or indirect ownership interest in Tenant, regardless of the number of tiers of ownership. [***]1’s obligations hereunder.
(b) If this Lease is assigned or transferred, or if all or any part of the Demised Properties is sublet or occupied by any party other than Tenant, Landlord may collect rent from the assignee, transferee, subtenant or occupant and apply the net amount collected to the Rent reserved in this Lease, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any covenant or condition of this Lease or Landlord’s acceptance of the assignee, transferee, subtenant or occupant as tenant, or a release by Landlord of Tenant from the performance or further performance by Tenant of its obligations under this Lease. Without limiting the generality of the forgoing, Tenant expressly acknowledges and agrees that (i) any sublease with respect to any Demised Property or portion thereof entered into from and after the Commencement Date shall expressly provide that it is subject and subordinate to this Lease, and (ii)that, in the event of any assignment of this Lease, Tenant shall remain jointly and severally liable with the assignee for all of the obligations under this Lease, and in all other cases of any transfer of Tenant’s interest under this Lease, Tenant shall remain primarily liable for such obligations. Subject to the foregoing, the consent by Landlord to an assignment, transfer or subletting shall not in any way be construed to relieve Tenant from obtaining the express written consent of Landlord in each instance to any subsequent similar action that Tenant may desire to take.
1(c) Except as expressly permitted by clause (a)(1) and (a)(2) of Section 22.01 above, if Tenant desires to assign this Lease, whether by operation of law or otherwise (each a “Non-Preapproved Assignment”), to a Person (“Non-Preapproved Assignee”) then Tenant shall, not less than thirty (30) days prior to the date on which it desires to make a Non-Preapproved Assignment, submit to Landlord information regarding the following with respect to the Non-Preapproved Assignee and the Non-Preapproved Assignment (collectively, the “Review Criteria”): (a) the proposed effective date of the Non-Preapproved Assignment, (b) all of the terms of the proposed Non-Preapproved Assignment and the consideration therefor, (c) the name, address and business of the proposed Non-Preapproved Assignee, (d) information concerning the character of the Non-Preapproved Assignee (including current financial statements thereof certified by an officer, partner or owner thereof, business credit and personal references and a description of the history of the Non-Preapproved Assignee), and (e) proposed use of the Demised Properties by the Non-Preapproved Assignee. [***] Indicates material that has been omitted Landlord shall review such information and for which confidential treatment has been requestedshall approve or disapprove the Non-Preapproved Assignee and the Non-Preapproved Assignment no later than twenty (20) days following receipt of all such information, and Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment. All If a response is not received by Tenant by the expiration of such omitted material has been filed with the Securities twenty (20) day period, such Non-Preapproved Assignee and Exchange Commission Non-Preapproved Assignment shall be deemed disapproved.
(d) Other than pursuant to Rule 24b-2 under Preapproved Sublets, at no time during the Securities Lease Term shall subleases exist for more than thirty percent (30%) of the gross leasable area of the Demised Properties without the prior written consent of Landlord, which consent shall be granted or withheld based on a review of the Review Criteria as they relate to the proposed sublessee and Exchange Act the terms of 1934, as amendedthe proposed sublease. Landlord shall be deemed to have acted reasonably in granting or withholding consent if such grant or disapproval is based on Landlord’s review of the Review Criteria applying prudent business judgment.
Section 22.02 Upon any sublease or assignment permitted as provided in this Article 22, Tenant shall deliver to Landlord copies of such sublease or assignment agreementagreement promptly (but no later than ten (10) days) following execution and delivery thereof. In no event shall Tenant be entitled to amend, extend -26- A&R MASTER LAND AND BUILDING LEASE ACTIVE 230595713 or otherwise modify any sublease or assignment agreement that required the prior written consent of Landlord pursuant to the terms hereof without the prior written consent of Landlord, which consent Landlord may withhold in its reasonable discretion, taking into consideration the factors set forth in Section 22.01(c).
Section 22.03 Subject to the terms of this Lease, this Lease shall be binding upon, enforceable by, and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and assigns.
Section 22.04 [***]1.
Section 22.05 Landlord and Tenant acknowledge and agree that (i) the leases set forth on Schedule 22.05 attached hereto and incorporated herein (the “Subleases”) shall be deemed subleases under this Lease, and (ii) all rights and obligations of the landlord under the Subleases, as between Landlord and Tenant, are rights and obligations solely of Tenant. Tenant shall fulfill, perform and observe in all respects, at no cost or expense to Landlord, each and every obligation, condition and covenant of the landlord in each Sublease and shall indemnify, defend and hold harmless each of the Landlord Parties for, from and against any and all Losses directly relating to the Subleases. In the event of the expiration or earlier termination of this Lease with respect to any applicable Demised Property, then, subject to Section 22.01(b), Landlord shall, at its option, have the right to succeed to the interest of Tenant as landlord under all Subleases with respect to such Demised Property, except that Landlord shall not be liable for any defaults of Tenant occurring prior to the date that Landlord succeeds to the interest of Tenant as landlord under such Subleases.
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