Common use of Replacement Letter of Credit Clause in Contracts

Replacement Letter of Credit. Notwithstanding anything to the contrary in this Lease, if at any time the Letter of Credit Issuer Requirements are not met, or if the financial condition of such issuer changes in any other materially adverse way, then Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Lease, including without limitation, the Letter of Credit Issuer Requirements. In the event Tenant fails to replace the Letter of Credit and satisfy the Letter of Credit Issuer Requirements within such 30-day period, Landlord shall provide Tenant with a second written notice therefor and Tenant’s failure to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of such second notice shall constitute an incurable default by Tenant. In addition and without limiting the generality of the foregoing, if the issuer of any letter of credit held by Landlord is insolvent or is placed in receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer then, effective as of the date of such occurrence, said Letter of Credit shall be deemed to not meet the requirements of this Article and Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Article and that meets the Letter of Credit Issuer Requirements (and Tenant’s failure to do so within such 30-day period, Landlord shall provide Tenant with a written notice therefor and if Tenant fails to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of Landlord’s notice shall, notwithstanding anything in this Article or the other terms and provisions of this Lease to the contrary, constitute an incurable default by Tenant. In addition, Tenant shall have the right to independently elect to replace any existing Letter of Credit with a new Letter of Credit if the new Letter of Credit: (1) Becomes effective at least thirty (30) days before expiration of the Letter of Credit that it replaces; (2) is in the Letter of Credit Amount, as such amount may have been reduced as set forth under Section 5(b)(i) of this Lease; (3) is issued by a bank complying with the Letter of Credit Issuer Requirements, and (4) otherwise complies with the requirements of this Article.

Replacement Letter of Credit. Notwithstanding anything to the contrary in this Lease, if at any time If the Letter of Credit Issuer Requirements are not met, or if the financial condition any letter of such issuer changes credit issued in any other materially adverse way, then Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Lease, including without limitation, the Letter of Credit Issuer Requirements. In the event Tenant fails to replace or in replacement of a replacement for the Letter of Credit and satisfy (any such replacement, a "REPLACEMENT LETTER OF CREDIT"), has an expiration date sooner than the Latest Letter of Credit Issuer Requirements within Date, and such 30-day period, Landlord shall provide Tenant with a second written notice therefor and Tenant’s failure to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of such second notice shall constitute an incurable default by Tenant. In addition and without limiting the generality of the foregoing, if the issuer of any letter of credit held by Landlord is insolvent or is placed in receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer then, effective as of the date of such occurrence, said Replacement Letter of Credit shall be deemed to is not meet the requirements of this Article and Tenant shall, within thirty renewed at least sixty (3060) days after written notice from Landlordprior to its expiration date, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Article and that meets the Letter of Credit Issuer Requirements (and Tenant’s failure to do so within such 30-day period, Landlord shall provide Tenant with a written notice therefor and if Tenant fails to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of Landlord’s notice shall, notwithstanding anything in this Article or the other terms and provisions of this Lease to the contrary, constitute an incurable default by Tenant. In addition, Tenant Lender shall have the right to independently elect to replace any existing draw upon such Letter of Credit with a new or Replacement Letter of Credit and use the proceeds to purchase a certificate of deposit in the name of Assuming Party. The maturity date of the certificate of deposit shall extend until three years PLUS 180 days (or if the new Letter Loan is extended or renewed by the Bank, until 180 days after THE FIRST TO OCCUR OF (I) five years following the date on which the Loan is initially funded or (II) the extended or renewal maturity date). The Lender shall retain possession of Credit: (1) Becomes effective at least thirty (30) days before expiration such certificate of deposit, and such certificate of deposit shall thereby be pledged to the Lender to secure the obligations of Assuming Party for the Assumed Indebtedness and otherwise under this Agreement. Assuming Party shall execute and deliver to the Lender a certificate of deposit pledge agreement on terms and conditions acceptable to the Lender, in the exercise of its sole discretion, to evidence further the pledge of the Letter certificate of Credit deposit to secure those obligations. Assuming Party agrees that it replaces; (2) its undertaking to sign such a certificate of deposit pledge agreement is specifically enforceable. The failure of the Lender to propose and/or of Assuming Party to sign such a certificate of deposit pledge agreement shall not prevent the certificate of deposit from having been pledged to the Lender as collateral for the obligations of Assuming Party for the Assumed Indebtedness and otherwise under this Agreement. Assuming Party further agrees to sign such additional documents and instruments as the Lender may request from time to time to more fully create, perfect, continue, maintain, or terminate the Lender's security interest in the Letter certificate of Credit Amount, as such amount may have been reduced as set forth under Section 5(b)(i) deposit intended to be created in this Agreement and/or the certificate of this Lease; (3) is issued by a bank complying with the Letter of Credit Issuer Requirements, and (4) otherwise complies with the requirements of this Articledeposit pledge agreement.

Replacement Letter of Credit. Notwithstanding anything to If Landlord or the contrary in this Lease, if at Beneficiary uses any time portion of the Letter of Credit Issuer Requirements are not metto cure any default by Tenant hereunder pursuant to clauses (A) and/or (B) of Section 32(c), Landlord shall so inform Tenant in writing and may, at its election, require that Tenant restore the Letter of Credit to the then-current LC Amount (whether by an amendment to the existing Letter of Credit or if by a replacement or supplemental Letter of Credit in the financial condition form and content specified above for the original Letter of Credit). Within ten (10) Business Days of the receipt by Tenant of such issuer changes in any other materially adverse way, then Tenant shall, within thirty (30) days after written a notice from Landlord, deliver Tenant shall provide such amendment or replacement or supplemental Letter of Credit to Landlord. Tenant’s failure to provide such amendment or replacement or supplemental Letter of Credit shall constitute a Tenant Default without the necessity of further notice or opportunity to cure. Any cash proceeds resulting from a draw upon the Letter of Credit pursuant to clauses (C), (D), (E) or (F) of Section 32(c) shall be held by Landlord and applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due, and/or to pay for all losses and damages that Landlord has suffered, including without limitation amounts provided to Landlord pursuant to Section 1951.2 of the California Civil Code, as a result of any breach or default by Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord's other assets. Tenant hereby (i) agrees that (A) Tenant has no property interest whatsoever in the proceeds from any such draw, and (B) such proceeds shall not be deemed to be or treated as a “security deposit” under the Security Deposit Laws, and (ii) waives all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Landlord agrees that the amount of any proceeds of the Letter of Credit received by Landlord, and not (a) applied against any Rent payable by Tenant under this Lease that was not paid when due, or (b) used to pay for any losses and/or damages suffered by Landlord (including without limitation amounts provided to Landlord pursuant to Section 1951.2 of the California Civil Code) as a result of any breach or default by Tenant under this Lease (the “Unused L-C Proceeds”), shall be paid by Landlord to Tenant (x) upon receipt by Landlord of a replacement Letter of Credit in the full LC Amount, which otherwise meets the requirements of this Lease, including without limitation, the Letter of Credit Issuer Requirements. In the event Tenant fails to replace the Letter of Credit and satisfy the Letter of Credit Issuer Requirements within such 30-day period, Landlord shall provide Tenant with a second written notice therefor and Tenant’s failure to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of such second notice shall constitute an incurable default by Tenant. In addition and without limiting the generality of the foregoing, if the issuer of any letter of credit held by Landlord is insolvent or is placed comply in receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer then, effective as of the date of such occurrence, said Letter of Credit shall be deemed to not meet the requirements of this Article and Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Article and that meets the Letter of Credit Issuer Requirements (and Tenant’s failure to do so within such 30-day period, Landlord shall provide Tenant with a written notice therefor and if Tenant fails to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of Landlord’s notice shall, notwithstanding anything in this Article or the other terms and provisions of this Lease to the contrary, constitute an incurable default by Tenant. In addition, Tenant shall have the right to independently elect to replace any existing Letter of Credit with a new Letter of Credit if the new Letter of Credit: (1) Becomes effective at least thirty (30) days before expiration of the Letter of Credit that it replaces; (2) is in the Letter of Credit Amount, as such amount may have been reduced as set forth under Section 5(b)(i) of this Lease; (3) is issued by a bank complying with the Letter of Credit Issuer Requirements, and (4) otherwise complies all respects with the requirements of this ArticleSection 32, or (y) within sixty (60) days after the Expiration Date; provided, however, that if prior to the Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant's creditors, under the Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the Unused L-C Proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed.

Replacement Letter of Credit. Notwithstanding anything to For purposes hereof, the contrary in this Lease, if at any time the "Letter of Credit Issuer Requirements are not met, or if Amount" shall be defined as follows: (i) during the financial condition period from the Commencement Date through the 4th anniversary of such issuer changes in any other materially adverse way, then Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Lease, including without limitationRent Commencement Date, the Letter of Credit Issuer RequirementsAmount shall be Four Million and 00/100 Dollars ($4,000,000.00); (ii) during the period from the 4th anniversary of the Rent Commencement Date through the last day immediately preceding the 5th anniversary of the Rent Commencement Date, the Letter of Credit Amount shall be Three Million and 00/100 Dollars ($3,000,000.00); and (iii) during the period from the 5th anniversary of the Rent Commencement Date through the 6th anniversary of the Rent Commencement Date, the Letter of Credit Amount shall be Two Million and 00/100 Dollars ($2,000,000.00). In Provided that no Event of Default has occurred hereunder, commencing with the event 4th anniversary of the Rent Commencement Date, concurrent with the expiration of any of the foregoing periods, Tenant fails may elect to replace the Letter of Credit and satisfy with a substitute Letter of Credit (the "Substitute Letter of Credit"), which Substitute Letter of Credit shall be in the amount of the Letter of Credit Issuer Requirements within such 30-day Amount which is applicable during the respective period, Landlord and shall provide Tenant in all respects comply with a second written notice therefor and Tenant’s failure to deliver such replacement the provisions of this Article 34. Such Substitute Letter of Credit shall be delivered to Landlord within five (5) business on or before the date which is 30 days prior to the then-current expiration date of the Letter of Credit. Upon delivery of such second notice shall constitute an incurable default the Substitute Letter of Credit by Tenant. In addition and without limiting , (i) the generality of the foregoing, if the issuer of any letter of credit held by Landlord is insolvent or is placed in receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer then, effective as of the date of such occurrence, said Substitute Letter of Credit shall be deemed to not meet be the requirements "Letter of Credit" for all purposes under this Article Lease, and (ii) the existing Letter of Credit shall be returned by Landlord to Tenant. In the event that Tenant shall, within thirty (30) days after written notice from Landlord, fails timely to deliver to Landlord a replacement Substitute Letter of Credit, then Landlord may elect, at any time thereafter, to draw down the then-outstanding Letter of Credit which otherwise meets and to hold the requirements proceeds thereof in accordance with the provisions of this Article and 34. To the extent that meets Landlord has not previously drawn down the Letter of Credit Issuer Requirements (or applied the proceeds thereof, and provided that no Event of Default has occurred under this Lease, then upon Tenant’s failure to do so within 's request therefor, the amount of such 30proceeds in excess of the then-day period, Landlord shall provide Tenant with a written notice therefor and if Tenant fails to deliver such replacement applicable Letter of Credit Amount shall be returned to Tenant by Landlord. To the extent that Landlord within five (5) business days of delivery of Landlord’s notice shall, notwithstanding anything in this Article or the other terms and provisions of this Lease to the contrary, constitute an incurable default by Tenant. In addition, Tenant shall have the right to independently elect to replace has not previously drawn upon any existing Letter of Credit with a new held by Landlord, and provided that no Event of Default has occurred under this Lease, then after the sixth anniversary of the Rent Commencement Date, promptly after receipt of Tenant's request therefor, the then-outstanding Letter of Credit if the new Letter of Credit: (1) Becomes effective at least thirty (30) days before expiration of the Letter of Credit that it replaces; (2) is in the Letter of Credit Amount, as such amount may have been reduced as set forth under Section 5(b)(i) of this Lease; (3) is issued shall be returned to Tenant by a bank complying with the Letter of Credit Issuer Requirements, and (4) otherwise complies with the requirements of this ArticleLandlord.

Replacement Letter of Credit. Notwithstanding anything Buyer shall use its best efforts to cause as promptly as practical following Closing the contrary in this Lease, if at any time termination of the Letter Letters of Credit Issuer Requirements are not metin full discharge and release of any and all obligations or Liability of Xxxxxx Xxxxxxxx Retail Partners, or if the financial condition of such issuer changes in LLC and its Affiliates thereunder. Notwithstanding any other materially adverse way, then Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements provision of this Lease, including without limitation, the Letter of Credit Issuer Requirements. In the event Tenant fails to replace the Letter of Credit and satisfy the Letter of Credit Issuer Requirements within such 30-day period, Landlord shall provide Tenant with a second written notice therefor and Tenant’s failure to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of such second notice shall constitute an incurable default by Tenant. In addition and without limiting the generality of the foregoing, if the issuer of any letter of credit held by Landlord is insolvent or is placed in receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer then, effective as of the date of such occurrence, said Letter of Credit shall be deemed to not meet the requirements of this Article and Tenant shall, within thirty (30) days after written notice from Landlord, deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Article and that meets the Letter of Credit Issuer Requirements (and Tenant’s failure to do so within such 30-day period, Landlord shall provide Tenant with a written notice therefor and if Tenant fails to deliver such replacement Letter of Credit to Landlord within five (5) business days of delivery of Landlord’s notice shall, notwithstanding anything in this Article or the other terms and provisions of this Lease Agreement to the contrary, constitute an incurable default by Tenant. In additionprior to such termination of the Letters of Credit, Tenant Buyer shall have (a) keep and maintain the right to independently elect to replace any existing Replacement Letter of Credit with a new in full force and effect at all times, (b) cause the prompt payment of funds under the Replacement Letter of Credit immediately upon any drawing under the Letters of Credit in the amount of such drawing and (c) immediately upon demand pay and reimburse to Xxxxxx Xxxxxxxx Retail Partners, LLC (without offset or deduction), by wire transfer of immediately available funds, any amounts drawn under the Letters of Credit if and to the new extent not then immediately available to Xxxxxx Xxxxxxxx Retail Partners, LLC under the Replacement Letter Credit (it being understood and agreed, for the avoidance of doubt, that in no event shall Seller or Xxxxxx Xxxxxxxx Retail Partners, LLC be entitled to draw funds under the Replacement Letter of Credit in respect of any drawing under the Letters of Credit for which and to the extent Buyer has previously paid and reimbursed Seller pursuant to this Section 6.7) and any costs, fees or expenses (including attorneys’ and other third parties’ costs, fees and expenses) related to the collection or enforcement, or any delay in performance, of any payment obligation under the Replacement Letter of Credit or this Section 6.7. Upon termination in accordance with this Section 6.7, or expiration, of any Letter of Credit: (1) Becomes effective , Seller shall reasonably cooperate with Buyer, at least thirty (30) days before expiration Buyer’s sole cost and expense, to reduce the face amount of the Replacement Letter of Credit that it replaces; (2) is in by the amount by which the aggregate face amount of the Letters of Credit, taken as a whole, was reduced by virtue of such termination. Seller shall return to Buyer the Replacement Letter of Credit Amountupon termination in accordance with this Section 6.7, as such amount may have been reduced as set forth under Section 5(b)(i) or expiration, of this Lease; (3) is issued by a bank complying with all the Letter Letters of Credit Issuer Requirements, and (4) otherwise complies with the requirements of this ArticleCredit.