AGREEMENT IN THE FORM OF EXHIBIT C OR IN SUCH OTHER FORM AS SHALL BE AGREEABLE
TO LESSEE, LESSOR AND SUCH SUBLESSEE (A "LESSOR NONDISTURBANCE AGREEMENT"), IF
THE FOLLOWING TERMS AND CONDITIONS ARE SATISFIED:
(A)
AT THE TIME OF THE REQUEST FOR THE LESSOR NONDISTURBANCE
AGREEMENT, LESSEE HAS A MINIMUM RATING;
(B)
AT THE TIME OF THE REQUEST FOR SUCH NON-DISTURBANCE AGREEMENT, THE
PROPOSED SUBLESSEE OR (ANY GUARANTOR OF SUBLESSEE'S OBLIGATIONS UNDER THE
SUBLEASE) HAS EITHER:
(I)
A MINIMUM RATING OR
(II)
A NET WORTH NOT LESS THAN FIVE (5) TIMES THE PRESENT VALUE, USING
A TEN PERCENT (10%) DISCOUNT RATE, OF THE SCHEDULED BASE RENTS PAYABLE UNDER THE
SUBLEASE FOR THE ENTIRE TERM THEREOF (INCLUDING RENEWALS EXERCISABLE AT THE
SUBLESSEE'S OPTION (WHICH RENEWALS, IF THEY ARE AT FAIR MARKET VALUE (RATHER
THAN A FIXED AMOUNT), SHALL BE ASSUMED FOR PURPOSES OF THIS CLAUSE (II) TO BE AT
THE LAST SPECIFIED BASE RENT);
(C)
THE SUBLEASE SHALL REFLECT MARKET TERMS AND CONTAIN PROVISIONS
THAT ARE CUSTOMARY IN THE SUFFOLK COUNTY, LONG ISLAND MARKET (WHICH MAY BE
CONCLUSIVELY EVIDENCED BY A LETTER FROM A LICENSED REAL ESTATE BROKER WITH AT
LEAST TEN (10) YEARS' COMMERCIAL OFFICE LEASING EXPERIENCE) AND SHALL PROVIDE
FOR NET BASE RENT THAT (ON A RENTABLE-SQUARE-FOOT BASIS) IS NOT LESS THAN THE
BASE NET RENT PAYABLE BY LESSEE HEREUNDER AND SUCH NET RENT SHALL NOT BE PAID
MORE THAN ONE MONTH IN ADVANCE;
(D)
THE SUBLESSEE WILL AGREE TO EXECUTE AND DELIVER THE FORM ATTACHED
AS EXHIBIT C HERETO; AND
(E)
THE PREMISES DEMISED UNDER THE SUBLEASE IS NOT LESS THAN 100,000
RENTABLE SQUARE FEET.
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If Lessor is obligated under this Section 16.3 to deliver a Lessor
Nondisturbance Agreement with respect to a particular Sublease, then Lessor
shall also cause each Mortgagee to execute and deliver its agreement to be bound
by the terms of the Lessor Nondisturbance Agreement if such Mortgagee or any
purchaser at foreclosure or other successor thereto shall at any time acquire
Lessor's Interests.
SECTION 16.4.
LESSEE REIMBURSEMENT OF EXPENSES.
LESSEE SHALL PAY ALL ACTUAL,
OUT-OF-POCKET THIRD-PARTY COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES AND EXPENSES) INCURRED BY LESSOR IN CONNECTION WITH THE REQUEST BY LESSEE
FOR A LESSOR NONDISTURBANCE AGREEMENT (BUT IN NO EVENT MORE THAN $5,000 PER
LESSOR NONDISTURBANCE AGREEMENT, ADJUSTED EACH SEPTEMBER 1 BY THE PERCENTAGE
CHANGE IN THE CONSUMER PRICE INDEX FROM SEPTEMBER, 2006.
ARTICLE XVII.
BROKERS
Lessee and Lessor each represents and warrants that it has had dealings with
only Jones Lang LaSalle Americas Inc. ("Lessee's Broker") in connection with the
negotiation of this Lease and it knows of no other real estate broker or agent
who is entitled to a commission in connection with this Lease.
Any brokerage
commission payable to Lessee's Broker in connection with this transaction shall
be paid by Lessee pursuant to a separate agreement, and Lessee shall indemnify,
defend and hold Lessor harmless from and against all liabilities arising from
any claims by or under Lessee's Broker in connection with this Lease.