Whenever the Lessee desires to effect an Assignment or a Sublease, the Lessee shall, and as a condition to the effectiveness thereof, at least sixty (60) days prior to the effective date of such proposed transaction, notify the Port Authority of such proposed transaction and submit to the Port Authority the following documents (which may be unexecuted but shall be in substantially final form) and information:
in the case of an Assignment, (x) a copy of the proposed instrument(s) of assignment, containing, inter alia, the name, address and telephone number of the proposed assignee, (y) a copy of the agreement with assignment and assumption referred to in Section 14.6 below and (z) an affidavit of the assignee or an authorized officer or general partner thereof, setting forth the following:
(A) in the case of a partnership, the names and addresses of all general partners and of all other partners having a five percent (5%) or greater ownership interest in the assignee,
(B) in the case of a corporation, the names and addresses of all directors and officers and of all Persons having a five percent (5%) or greater ownership interest in the assignee, and
(C) in the case of a limited liability company or other entity, the names and addresses of all managers or other Persons charged with the direction or management of its affairs and of all Persons having a five percent (5%) or greater ownership interest in the assignee;
in the case of an Assignment consisting of a Transfer that results in a direct or indirect change in Control of the Lessee or of the Lessee’s Direct Owners, (x) a copy of the proposed instrument(s) effecting the Transfer, containing, inter alia, the name, address and telephone number of the proposed Transferee, and (y) an affidavit of an authorized officer or general partner of the Lessee, setting forth the same information as is required with respect to assignees in subdivision (i)(z) above;
in the case of a Sublease, (x) a copy of the proposed sublease, containing, inter alia, the name, address and telephone number of the proposed Sublessee, and (y) an affidavit of an authorized officer or general partner of the Lessee or such proposed Sublessee, setting forth the same information as is required with respect to assignees in subdivision (i)(z) above; and
in all such cases, such other documents and information as the Port Authority may request to permit the evaluation of such Assignment or Sublease.
Section 14.4 Conditions to Effectiveness of Transactions.
Notwithstanding any other provision of this Agreement, and notwithstanding that the consent of the Port Authority may have been given or may not have been required, in no event shall an Assignment, Transfer, Sublease or Mortgage be permitted, and any such purported Assignment, Transfer, Sublease or Mortgage shall be void and of no effect, if:
(i) on the proposed effective date of such Assignment, Transfer, Sublease or Mortgage (x) there exists an Event of Default that remains uncured, (y) this Agreement shall not then be in full force and effect or (z) there is then in effect any notice of termination served by the Port Authority pursuant to the Article of this Agreement entitled “Termination”, or
(ii) the proposed Assignment, Transfer, Sublease or Mortgage is to any Person that is a Prohibited Party, or
(iii) the proposed Assignment, Transfer, Sublease or Mortgage would entail a violation of the Port Authority Code of Ethics or the relevant conflict of interest rules.
Section 14.5 No Waiver.
(a) Violations. The Port Authority may collect all rentals and fees due hereunder from any assignee or Subtenant or other party claiming a right under this Agreement or letting or occupying the Premises pursuant to an Assignment, Transfer or Sublease entered into in violation of the foregoing Sections, and the Port Authority shall apply the net amount collected to the rentals and fees herein reserved; but no such collection shall be deemed a waiver by the Port Authority of the prohibitions contained in the foregoing Sections or an acceptance by the Port Authority of any such assignee, Subtenant, claimant or occupant as Lessee, nor a release of the Lessee by the Port Authority from the further performance by the Lessee of the covenants contained herein.
(b) Consents. Any consent granted by the Port Authority to any Assignment, Transfer, Mortgage or Sublease pursuant to the provisions hereof shall not be construed or deemed to release, relieve or discharge any succeeding proposed Assignment, Transfer, Mortgage or Sublease from the requirement of having the prior written consent of the Port Authority.
Section 14.6 Certain Sublease Requirements.
(a) Lessee’s Name. The Lessee shall enter into all Subleases in its own name.
(b) Term. The Lessee shall not enter into any Sublease for a term (including renewal options) that expires later than the day preceding Expiration Date.
(c) Required Provisions. Every Sublease entered into by the Lessee shall provide as follows:
(i) It is subordinate and subject to this Agreement.
(ii) Except for security deposits and any other amounts deposited with the Lessee or with any Recognized Mortgagee in connection with the payment of insurance premiums, real property taxes and assessments and other similar charges or expenses, the Subtenant shall not pay rent or other sums payable under the Sublease to the Lessee for more than one (1) month in advance.
(iii) In the event the Port Authority has not entered into a nondisturbance agreement with such Subtenant pursuant to the provisions of this Section 14.6, then at the option of the Port Authority, on the termination of this Agreement pursuant to Article 17, the Subtenant shall attorn to, or shall enter into a direct lease on terms identical to its Sublease with, the Port Authority for the balance of the unexpired term of the Sublease.
(iv) With respect to any Sublease providing for the payment of percentage rent by the Subtenant to the Lessee, the Subtenant shall maintain full and accurate books of account and records of the Subtenant’s business operation or enterprise, which books and records shall be so kept and maintained for at least five (5) years after the end of each lease year.
(d) Subtenant Obligations. The Lessee shall use its best efforts to cause all Subtenants to comply with their obligations under their Subleases. A violation or breach of any of the terms, provisions or conditions of this Agreement that results from, or is caused by, an act or omission by a Subtenant shall not relieve the Lessee of the Lessee’s obligation to cure such violation or breach.
(e) Collection of Subrent by the Port Authority. After an Event of Default relating to the Lessee’s monetary obligations hereunder, the Port Authority may, subject to the rights of any Recognized Mortgagee, collect rent and all other sums due under any Subleases and apply the net amount collected to the Rental payable by the Lessee hereunder. No such collection shall be, or shall be deemed to be, a waiver of any agreement, term, covenant or condition of this Agreement or the recognition by the Port Authority of any Subtenant as a direct tenant of the Port Authority or a release of the Lessee from performance of its obligations under this Agreement.
(f) Sublease Assignment.
(1) As additional security for the full performance of all of the Lessee’s obligations hereunder, the Lessee hereby assigns, transfers and sets over unto the Port Authority, subject to any assignment of Subleases and/or rents to a Recognized Mortgagee made in connection with its Mortgage, all of the Lessee’s right, title and interest in and to all Subleases, and hereby confers upon the Port Authority, its agents and representatives, a right of entry in, and sufficient possession of, the Premises to permit and ensure the collection by the Port Authority of all sums payable under such Subleases, and enforcement of all other rights of the Lessee under such Subleases. The exercise of such right of entry and qualified possession by the Port Authority shall not constitute an eviction of the Lessee from the Premises or any portion thereof. If such right of entry and possession is denied to the Port Authority, its agents or representatives, the Port Authority, in the exercise of this right, may use all requisite force to gain and enjoy the Premises with neither responsibility for nor liability to the Lessee, its servants, employees, guests or invitees, or any Person whatsoever.
(2) On June 30 and December 31 of each year during the term of this Agreement, commencing with the year in which the Building is first occupied by any Subtenant, the Lessee shall deliver to the Port Authority (x) a schedule of all Subleases, giving the names of all Subtenants, a description of the space that has been sublet (or licensed, etc.) expiration dates, rentals and other fees and such other information as the Port Authority may request, and (y) a photostatic copy of all Subleases, licenses and franchise and concession agreements. Upon request of the Port Authority, the Lessee shall permit the Port Authority and its agents and representatives to inspect original counterparts of all Subleases.
(g) Nondisturbance Agreements. From time to time, within thirty (30) days after request by the Lessee, the Port Authority will enter into a nondisturbance agreement, substantially in the form annexed hereto as “Exhibit _” (a “Nondisturbance Agreement”), with any Subtenant that has entered into a Sublease for more than two thousand (2,000) square feet of space in the Premises and having a term of more than seven (7) years; provided, however, that the Port Authority shall provide Nondisturbance Agreements without charge not more than twice in any rolling one—year period; for each Nondisturbance Agreement provided by the Port Authority in excess of the foregoing frequency, the Lessee shall pay to the Port Authority a charge in the amount of One Thousand Dollars and No Cents ($1,000.00), such amount to be increased by the percentage increase in the Index as of the fifth (5th) anniversary of the Lease Commencement Date and each fifth anniversary thereafter.