Lease and development agreement



Download 492.42 Kb.
Page21/46
Date conversion24.11.2016
Size492.42 Kb.
1   ...   17   18   19   20   21   22   23   24   ...   46

ARTICLE 14. ASSIGNMENT, TRANSFER, MORTGAGE AND SUBLETTING

Section 14.1 Definitions.


Assignment” shall mean any sale, conveyance, transfer, exchange, assignment or other disposition, of all or any portion of the Lessee’s interest in this Agreement or the leasehold estate created hereby, whether by operation of law or otherwise. “Assignment” shall include any Transfer that results in a direct or indirect change in Control of the Lessee or of the Lessee’s Direct Owners, provided, however (and without limitation as to the generality of the foregoing), that any transfer of more than fifty percent (50%) of the legal or beneficial interests in the Lessee or in the Lessee’s Direct Owners shall be deemed to constitute a “change in Control” of the Lessee or the Lessee’s Direct Owners, respectively. A Mortgage shall not constitute an Assignment.

Control” shall have the meaning provided in the definition of “Affiliate” set forth in Article 1 above.

Lessee’s Direct Owners” shall mean [ , and ], and their successors and assigns.

Mortgage” shall mean any mortgage or deed of trust, a deed to secure debt or other security instrument by which a Lessee’s leasehold estate created hereunder is mortgaged, conveyed, assigned or otherwise transferred to secure a debt or other obligation, and all extensions, modifications and amendments thereto.

Sublease” shall mean any sublease (including a sub—sublease or any further level of subletting) and any occupancy, license, franchise or concession agreement applicable to the Premises or any portion thereof.

Subtenant” shall mean any subtenant (including a sub-subtenant or any further level of subtenant), operator, licensee, franchisee, concessionaire or other occupant (other than a transient hotel guest), pursuant to a Sublease.

Transfer” shall mean the transfer, sale, assignment, pledge, hypothecation or other disposition of any interest in the Lessee or in any direct or indirect constituent entity of the Lessee, where such disposition (whether by itself or cumulatively with other transactions) directly or indirectly produces any change in the direct or indirect beneficial ownership of an interest in, or Control of, the Lessee or the Lessee’s Direct Owners, and shall include but not be limited to (1) the sale, assignment, redemption or transfer of outstanding stock of or membership interest in, respectively, any corporation or any limited liability company that is the Lessee or that is the general partner of any partnership that is the Lessee, (2) the issuance of additional stock or membership interest in, respectively, any corporation or limited liability company that is the Lessee or that is the general partner of any partnership that is the Lessee, and (3) the sale, assignment, redemption or transfer of any general or limited partner’s interest in, or the admission of a new partner to, a partnership that is the Lessee or that is a general or limited partner of any partnership that is the Lessee.

Section 14.2 Consent Required.


(a) No Assignment without Prior Written Consent. Except as otherwise expressly provided in this Agreement, no Assignment, Sublease or Mortgage may be made without the prior written consent in each instance of the Port Authority, and any Assignment, Sublease or Mortgage made without such consent shall constitute a material default under this Agreement, giving rise to a right of termination by the Port Authority under the Article hereof entitled “Termination”.

(b) Certain Assignments following Initial Period. Notwithstanding the provisions of Section 14.2(a), following the tenth (10th) anniversary of the Construction Completion Date, the Port Authority shall not unreasonably withhold its consent to an Assignment to an entity that:


  1. is not a Prohibited Party;

is financially solvent and, together with its Affiliates, has a tangible net worth (on a fair market value basis) of at least (x) $50,000,000.00 or (y) fifty percent (50%) of the fair market value of the Hotel, whichever of (x) or (y) is higher; provided, however, that the figure set forth in the foregoing clause (ii)(y) shall be increased every ten (10) years from the Lease Commencement Date by the percentage by which the Index has increased over the previous ten (10) year period;

either itself possesses, or has retained a hotel management company that possesses, substantial experience and a proven track record in the management and operation of other Upper Scale Hotels to a level at least comparable to the “X” brand, including the ownership or management for at least ten (10) recent years of at least four (4) Upper Scale Hotels containing at least 1,000 rooms in the aggregate, including (x) at least one property containing at least 50 rooms that is listed on the National Register of Historic Places, is a locally designated landmark or is an architecturally and historically significant building; and

if it is retaining the services of a hotel management company, such hotel management company shall be financially solvent and shall have sufficient net worth to perform its obligations under the Hotel Management Agreement;


provided, in each case, that (if applicable) a Franchise Agreement duly consented to by the Port Authority is in full force and effect as of the effective date of such Assignment; and

provided, further, that at least sixty (60) days prior to the effective date of such proposed Assignment, the Lessee shall provide a notice to the Port Authority setting forth the nature of the proposed Assignment and the ownership structure of the proposed new lessee, and shall provide the Port Authority, in addition to the documents and information required pursuant to Section 14.3 below, with such additional information as is reasonably necessary for the Port Authority to verify that such Assignment complies with the foregoing requirements.

(c) Assignment by Recognized Mortgagee. Notwithstanding the provisions of Section 14.2(a), where a Recognized Mortgagee (x) has acquired the Lessee’s interest in this Agreement through foreclosure of its Mortgage, or assignment of this Agreement in lieu of foreclosure, or (y) has entered into a New Lease, the Port Authority’s consent shall not be required to an Assignment by such Recognized Mortgagee of its interest in this Agreement or such New Lease, as the case may be, to an entity that satisfies the requirements set forth in clauses (i) through (iv) of Section 14.2(b) above;



provided, in each case, that (if applicable) a Franchise Agreement duly consented to by the Port Authority is in full force and effect as of the effective date of such Assignment; and

provided, further, that at least thirty (30) days prior to the effective date of such Assignment, the Recognized Mortgagee shall provide a notice to the Port Authority setting forth the nature of the Assignment and the ownership structure of the new lessee, and shall provide the Port Authority with such additional information as is reasonably necessary for the Port Authority to verify that such Assignment complies with the foregoing requirements.
1   ...   17   18   19   20   21   22   23   24   ...   46


The database is protected by copyright ©dentisty.org 2016
send message

    Main page