Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder. (b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits. (c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five. (d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Office Lease (Accolade, Inc.), Office Lease (Accolade, Inc.)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, The Tenant will deposit with the Letter Landlord the sum of Credit $27,500.00, on the Rent Commencement Date, representing one (defined below1) or cash in the amount month of rent as security payment of the Security specified in Section 1.01(13) as security (“Security”) for rent hereunder and the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of Of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage herein. Said sum shall be returned to the Premises caused by Tenant (excluding normal wear and tear)Tenant, then Landlord may usewithout interest, apply, or retain after the whole or any part expiration of the Security for term hereof, provided that the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, such covenants and conditions of this Leaseand is not in arrears in rent. During the term hereof, the Security (except Landlord may, if the Landlord so elects, have recourse to such security, to make good any amount retained default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to the Premises, whether any change in ownership thereof be by voluntary alienation or as the result if judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for application by Landlord the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to the Premises, in which case the assignee shall become liable for the repayment thereof as provided herein) herein provided, and the assignor shall be returned or paid over deemed to Tenant no later than sixty (60) days after be released by the latest of: (i) the Termination Date; (ii) the removal of Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in titled and shall in no wise be deemed to permit the Premises; (iii) Landlord to retain the surrender security after termination of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action ownership of the reversion or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordtitle. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. The Tenant shall not be entitled to any interest on mortgage, encumber or assign the Security. In security without the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return written consent of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsLandlord.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Lease Agreement (Notes Live, Inc.), Lease Agreement (Fresh Vine Wine, Inc.)
Security. (a) Tenant14.1. Subtenant is simultaneously herewith delivering to Sublandlord the sum of $14,170.00 as security for the faithful performance and observance by Subtenant of the terms, at Tenant’s sole cost provisions, covenants and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery conditions of this Lease to Landlord, with the Letter of Credit (defined below) or cash Sublease; it is agreed that in the amount event Subtenant defaults in respect of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this LeaseSublease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear fixed annual rent and tear)additional rent, then Landlord Sublandlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of fixed annual rent and additional rent or any other sum as to which Landlord Subtenant is in default or for any sum which Sublandlord may expend or may be required to expend by reason of Tenant’s failure to performSubtenant's default in respect of any of the terms, provisions, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Sublease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Sublandlord. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant Subtenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days Subtenant after the latest of: (i) date fixed as the Termination Date; (ii) the removal end of Tenant from the Premises; (iii) the surrender this Sublease and after delivery of entire possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecuritySublandlord. In the event of any sale, lease a transfer or transfer assignment of Landlord’s Sublandlord's interest in the BuildingPremises, Landlord Sublandlord shall have the right to transfer the Security, or balance thereof, security to the vendee, assignee or transferee or lessee and any such transfer Sublandlord shall release Landlord thereupon be released by Subtenant from all liability for the return of the Security. Tenant thereafter shall such security; and Subtenant agrees to look solely to such vendee, transferee the new landlord or lessee sublandlord for the return or payment of the Securitysaid security. Tenant shall Subtenant further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Sublandlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon Sublandlord applies or retains any portion or all of the Letter security deposited, Subtenant shall forthwith restore the amount so applied or retained so that at all times the amount deposited shall be $14,170.00.
14.2. In the event Subtenant defaults in respect to any of Credit the terms, provisions, covenants and elects not to terminate the Leaseconditions of this Sublease, including, but not limited to, the payment of rent and additional rent, Sublandlord may use, apply or retain the whole or any part of the security so deposited to use the Letter extent required for the payment of Credit Proceedsany rent and additional rent or any other sum as to which Subtenant is in default or for any sum which Sublandlord may expend or may be required to expend by reason of Subtenant's default in respect of any of the terms, then within ten (10) business days provisions, covenants, and conditions of this Sublease, including but not limited to, any damages or deficiency accrued before or after Landlord gives Tenant written notice specifying summary proceedings or other re-entry by Sublandlord.
14.3. In the event Sublandlord applies or retains any portion or all of the security delivered hereunder, Subtenant shall forthwith restore the amount of so applied or retained so that at all times the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, deposited shall be “evergreen”, and shall be extended, reissued or replaced not less than the security required by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditSection 14.1.
Appears in 2 contracts
Sources: Assignment Agreement (Intralinks Inc), Assignment Agreement (Intralinks Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, The Tenant has/will deposit with the Letter Landlord the sum of Credit (defined below) or cash in $6,750.00 as security for the amount payment of the Security specified in Section 1.01(13) as security (“Security”) for rent hereunder and the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, on the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for Tenant to be performed. Said sum will be returned to the payment of any Rent not paid when dueTenant, for without interest, after the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting expiration of the Premises (whether such lossterm hereof, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and provided that the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, such covenants and conditions of this Leaseand is not in arrears in rent. During the term hereof, the Security (except Landlord may, if the Landlord so elects, have recourse to such security, to make good any amount retained default by the Tenant and the Tenant will on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant will run with the reversion and title to the Premises whether any change in ownership thereof is by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings or the exercise of a right of taking or entry by any mortgagee. The Landlord will assign or transfer said security, for application by Landlord as provided herein) shall be returned the benefit of the Tenant, to any subsequent owner or paid over holder of the reversion or title to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return which case the assignee will become liable for the repayment thereof as herein provided and the assignor will be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord released from all liability for the to return of the Securitysuch security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit This provision shall be freely transferable by Landlord, without charge applicable to every change in title and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall does not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle permit the Landlord to immediately draw upon retain the Letter security after termination of Creditthe Landlord’s ownership. The Tenant will not mortgage, encumber or assign said security without the written consent of the Landlord.
Appears in 2 contracts
Sources: Lease Agreement (Castellum, Inc.), Lease Agreement (Castellum, Inc.)
Security. 8.1 Landlord acknowledges receipt of the sum of Seventy One Thousand Six Hundred Twenty Five and 00/100 (a$71,625.00) Dollars, which sum is equivalent to two (2) months of Basic Rental and Additional Rental as of the date of the execution of this Lease, which shall be returned to Tenant, at Tenant’s sole cost and expensewithout interest, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with on the Letter of Credit (defined below) or cash in day set forth for the amount expiration of the Security specified in Section 1.01(13) term herein, provided, however, that Tenant has fully and faithfully carried out all of the terms, covenants and conditions on its part to be performed, and which sum shall be held by Landlord as a security (“Security”) for the full and faithful performance by of Tenant of each to so perform under the conditions and every term, provision, covenant, and condition terms of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, require Tenant to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord increase the amount of such draw upon receipt said security deposit to reflect the then current Basic Rental by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, written notice to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per yearaddition, Landlord shall have the right to require Tenant to deliver increase the amount of said security deposit, provide a completion bond or irrevocable letter of credit in form satisfactory to LandlordLandlord to financially secure Landlord against the faithful performance of Tenant's obligation to repair or restore the Premises at the termination of this Lease under Paragraph 12.2 hereunder, on 15 days prior noticethe amount of said increased security deposit, a replacement Letter completion bond or irrevocable letter of Credit on credit to be determined by Landlord in its reasonable commercial judgment. Upon such written notice to Tenant, Tenant shall pay such additional security deposit, provide said completion bond or said irrevocable letter of credit within Thirty (30) days. Landlord may apply security deposit, or so much thereof, or so much thereof as may be necessary, towards the same terms and conditions set forth in this Article Fiveremedying of any damage or condition that is the responsibility of Tenant which an inspection shall disclose. Nothing hereinabove contained shall, in any way, limit the event that right of Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer recover against Tenant for any damage or other condition arising out of the Letter failure of CreditTenant to so perform. Any advice from In no event shall Tenant have the issuer that it intends right to withdraw cause or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the direct Landlord to immediately draw upon apply the Letter of Creditsecurity deposit against any monthly rental installment, including the last month's rental installment.
Appears in 2 contracts
Sources: Lease (Memry Corp), Lease (Memry Corp)
Security. (a) Tenant shall deliver to Landlord upon execution hereof by Tenant, at as security for the performance of Tenant’s sole cost obligations under this Lease, either an unconditional, clean, irrevocable letter of credit in the amount of $128,282.00 (“Security Deposit Amount”) in the form annexed hereto as Exhibit G and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease issued by a bank reasonably satisfactory to Landlord, with Landlord (the “Letter of Credit (defined belowCredit”) or a cash security deposit by certified check or wire transfer in the amount of the Security specified in Section 1.01(13) as security Deposit Amount (the “Cash Security”). The Letter of Credit shall provide that it is assignable by Landlord without charge and shall either (i) for expire on the full and faithful performance by date which is 60 days after the expiration or earlier termination of this Lease (the “LC Date”) or (ii) be automatically self-renewing until the LC Date. If any Letter of Credit is not renewed at least 60 days prior to the expiration thereof or if Tenant holds over in the Premises without the consent of each and every term, provision, covenant, and condition Landlord after the expiration or termination of this Lease, Landlord may draw upon the Letter of Credit and hold the proceeds thereof as security for the performance of Tenant’s obligations under this Lease. If Tenant fails timely Landlord may draw on the Letter of Credit (or the proceeds thereof) and/or the Cash Security to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed remedy defaults by Tenant in connection with the payment or performance of any of Tenant’s obligations under this Lease, Lease (including, but not limited towithout limitation, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or i) any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure default, and/or (ii) any damages to performwhich Landlord is entitled pursuant to this Lease, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry reentry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease). If Landlord shall have so uses, applies drawn upon the Letter of Credit (or retains all or part of the proceeds thereof) and/or Cash Security, Tenant shall shall, within ten five (105) business days after demand pay or deliver of demand, deposit with Landlord a sum equal to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retainedso drawn by Landlord. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security The failure to make such deposit within such five (except any amount retained for application by Landlord as provided herein5) day period shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment Event of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of LandlordDefault hereunder. Landlord shall not be required to keep deposit the Cash Security separate from its general funds into an interest bearing account.
(b) Provided Tenant is not in default under this Lease and Tenant has surrendered the Premises to Landlord in accordance with all of the terms and conditions of this Lease, on or before the LC Date: (i) Landlord shall not return to Tenant the Letter of Credit (or the proceeds thereof) and/or Cash Security then held by Landlord or (ii) if Landlord shall have any fiduciary duties drawn upon such Letter of Credit (or other duties (except as set forth the proceeds thereof) and/or Cash Security to remedy defaults by Tenant in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event payment or performance of any sale, lease or transfer of LandlordTenant’s interest in the Buildingobligations under this Lease, Landlord shall return to Tenant that portion, if any, of the proceeds of the Letter of Credit and/or Cash Security remaining in Landlord’s possession.
(c) Upon a sale or other transfer of the Land or the Building (or both), Landlord shall transfer the Letter of Credit or the cash proceeds and/or Cash Security to its transferee. With respect to the Letter of Credit, within 5 days after notice of such transfer, Tenant, at its sole cost, shall (if required by Landlord) arrange for the transfer of the Letter of Credit to the new landlord, as designated by Landlord in the foregoing notice or have the right to Letter of Credit reissued in the name of the new landlord. Upon such transfer of the SecuritySecurity Deposit, or balance thereof, Tenant shall look solely to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability new landlord for the return of the Security. Security Deposit (or remaining portion thereof) and thereupon Landlord shall without any further agreement between the parties be released by Tenant thereafter from all liability therefor, and it is agreed that the provisions hereof shall look solely apply to such vendee, transferee every transfer or lessee for the return or payment assignment made of the SecuritySecurity Deposit to a new landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security Deposit and neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such action or attempted assignment, or encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Lease (Y-mAbs Therapeutics, Inc.), Lease (Y-mAbs Therapeutics, Inc.)
Security. (a) Tenant, at Tenant’s sole cost and expense, Tenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery Landlord the sum of $44,000 upon the signing of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) lease as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Leaselease. If It is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, including but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the Buildingdemised premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee upon written notice to Tenant and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. All interest and/or dividends, if any, accruing on the security deposited, whether in cash or otherwise as aforesaid, shall remain Tenant's property* and, provided Tenant is not in default in the performance of the terms, conditions and regardless of one or more assignments covenants of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) yearlease, shall be “evergreen”paid to Tenant after each calendar year during the term, and provided, however, that Tenant shall be extended, reissued or replaced by Tenant, make a written demand therefor no later than January 31st in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements year. * Less standard management charge of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit1%.
Appears in 2 contracts
Sources: Loft Lease (Younetwork Corp), Lease Agreement (Younetwork Corp)
Security. (a) Tenant, Tenant shall deposit with Landlord unconditional “evergreen” letters of credit in substantially the form set forth in Schedule F attached hereto from a recognized commercial banking institution located in the State of New Jersey or the City of New York and having a net worth of at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash least $500,000,000.00 as follows: in the amount of $1,500,000.00 concurrently with the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition execution of this Lease. If Tenant fails timely to perform (within applicable notice ; and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall $1,225,000.00 within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions execution of this Lease, the Security . The letters of credit (except any amount retained for application by Landlord as provided hereinor renewals thereof) shall be returned or paid over to Tenant no later not expire earlier than the date that is sixty (60) days after the latest of: Expiration Date, provided, that, if Tenant is unable to obtain a letter of credit expiring as of such date, (i) such letter of credit with the Termination Date; “evergreen” renewals shall have a term of at least three (3) years, and (ii) Tenant shall deliver to Landlord a new letter of credit satisfying the removal provisions of Tenant from this Section (a) at least sixty (60) days prior to the Premises; (iii) the surrender final expiration date of the Premises by expiring letter of credit and, if Tenant fails to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of timely provide Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement such replacement letter of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Buildingcredit, Landlord shall will have the right to transfer cash the Security, or balance thereof, to letters of credit and retain the vendee, transferee or lessee and any such transfer shall release proceeds as security hereunder. The letters of credit will be held by Landlord from all liability as security for the return full and faithful performance of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant obligations under this Lease. The Letter letters of Credit shall have an initial term credit must be payable upon sight draft, together with a certification from Landlord that Tenant is in default under this Lease beyond any applicable notice and grace period. If (i) any Basic Rent, Additional Rent or other sum payable by Tenant to Landlord is not paid when due beyond any applicable notice and grace period, or (ii) Landlord makes any payments on behalf of no longer than one Tenant after the expiration of any applicable notice and grace period, or (1iii) yearTenant fails to perform any of its obligations under this Lease beyond any applicable notice and grace period, shall be “evergreen”, and shall be extended, reissued or replaced by Tenantthen, in each case, Landlord will have the right, without prejudice to any other remedy Landlord may have, to draw down such letters of credit to compensate or reimburse Landlord, as the case may be, toward the payment of Basic Rent, Additional Rent or other such sum payable hereunder, or other loss or damage sustained by Landlord on account of Tenant’s default. The Security will not be deemed to be (x) a limitation on Landlord’s damages or other rights and remedies available under this Lease or at law or equity, (y) a payment of liquidated damages, or (z) an advance of the Basic Rent or Additional Rent. If Landlord uses, applies, or retains all or any portion of the Security, Tenant shall immediately restore the Security to its original amount. If the letters of credit require renewal, Tenant shall furnish to Landlord evidence of such renewal at least thirty (30) days prior to its the expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) aboveletters of credit. No more often than once per yearIf Tenant fails to timely provide Landlord with such evidence of renewal, Landlord shall will have the right to require cash the letters of credit and to retain the proceeds as security hereunder. Landlord will not be required to keep any cash security separate from its own funds. Landlord will have no fiduciary responsibilities or trust obligations with regard to any cash security and will not be obligated to pay Tenant to deliver to Landlordany interest on any cash security. Tenant shall not assign, pledge, hypothecate, mortgage or otherwise encumber the Security. Provided that Tenant is not in default of any monetary obligations or any other material obligations hereunder, then, on 15 days prior noticethe three (3) year anniversary of Tenant’s commencement of the payment of Basic Rent, and continuing on each anniversary thereafter, Tenant shall be entitled to a replacement Letter ten percent (10%) reduction in the amount of Credit on the same terms and conditions Security, until such time that the Security is an amount equal to three (3) months of the then escalated Basic Rent. If Tenant is entitled to the reductions in the Security as set forth in the immediately preceding sentence, Tenant shall deliver to Landlord either (i) an amendment to the existing letters of credit evidencing such reduced amount, or (ii) new letters of credit complying with the provisions of this Article Five28 in such reduced amount to replace the letters of credit then being held by Landlord. Upon receipt of any such new letters of credit, in Landlord shall return the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer letters of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the credit then being held by Landlord to immediately draw upon Tenant. All terms applicable to the Letter of CreditSecurity under this Article 28 shall otherwise apply.
Appears in 2 contracts
Sources: Lease Agreement (BTRS Holdings Inc.), Lease Agreement (South Mountain Merger Corp.)
Security. 40.01. Tenant has deposited with Landlord an unconditional irrevocable letter of credit (aas hereinafter defined) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash substantially in the form attached hereto as Schedule H (as the same may be modified in accordance with this section, the "letter of credit") in an amount of the Security specified in Section 1.01(13) equal to Two Hundred Forty Thousand and 00/100 Dollars ($240,000), as security (“Security”) for the full and faithful punctual performance by Tenant of each and every term, provision, covenant, and condition all of the terms of this Lease. If In the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in the performance of any of the terms, provisions, covenants and conditions terms of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain draw upon the letter of credit in full and any amounts not applied as hereinafter provided shall be held by Landlord subject to and in accordance with the provisions of this Section. Landlord may then apply the whole or any part of the Security security so drawn upon to the extent required for the payment of (i) any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent or (ii) any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, 's default including, but not limited towithout limitation, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue accruing before or after summary proceedings or other re-entry by Landlord) and . Upon each such application, Tenant shall, on demand, pay to Landlord the sum so applied in cash which shall be added to the remaining proceeds from the letter of credit so that the security held by Landlord shall be restored to the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retainedfirst set forth above. If Tenant has shall fully and faithfully performed and observed punctually comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions terms of this Lease, the Security (except any letter of credit or the amount retained for application by Landlord of the security deposit, as provided herein) the case may be, shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal termination of Tenant from the Premises; (iii) the surrender this Lease, delivery of exclusive possession of the Demised Premises by Tenant to Landlord in accordance with this Lease; or (iv) and the date Rent Adjustments owed pursuant payment to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed of all of its obligations amounts payable hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, a sale or lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, letter of credit or balance thereof, the security deposit to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord ipso facto be released by Tenant from all liability for the return of the Security. such security; and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new landlord for the return of said security and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securityletter of credit or security to a new landlord. If 30 days prior to the date of such sale, Landlord shall be holding a letter of credit as Tenant's security, Tenant will upon five (5) days prior written notice, deliver a substitute letter of credit naming the new landlord as the new beneficiary thereof. In the event Tenant shall default in such obligation, Landlord may draw upon the letter of credit and transfer the proceeds thereof to the new landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, or attempted assignment or attempted encumbrance, and regardless . In the event the letter of one credit referred to above or more assignments any substitute letter of this Leasecredit is not renewed so that at all times the letter of credit held by Landlord hereunder is valid for a period in excess of 30 days, Landlord may return draw upon said letter of credit and hold the Security proceeds thereof subject to and in accordance with the original Tenant without liability to any assignee. Tenant hereby waives any and all rights terms of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsthis Section.
(c) If 40.02. So long as Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant is not then in default under this Lease without any right to and no monetary default or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided material non-monetary default under this Lease shall have previously occurred, Tenant shall have the right, by notice (a "Reduction Notice") given to Landlord at any time after each Reduction Date (as defined below) to reduce the amount of security held by landlord pursuant to this Article Five.
(d) As used herein40 by $24,000.00. If Tenant properly gives a Reduction Notice to Landlord, “Letter of Credit” Landlord shall mean an unconditional, irrevocable sight draft return such letter of credit issuedto Tenant; provided, presentable and payable at the office of a major national bank satisfactory that Tenant has delivered to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, a substitute letter of credit in an amount equal to the difference between the amount of the letter of credit which Landlord is returning to Tenant less $1,084,479.58 and24,000.00. Anything to the contrary contained in this Section 40.02 notwithstanding, prior to any Reduction (defined below) while a Letter in no event shall the amount of Credit is serving as Security, Tenant shall have delivered to security held by Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amountArticle 40 be less than $120,000.00. Notwithstanding anything to the contrary"Reduction Date" means March 31, Landlord hereby approves of Comerica Bank as the Bank1999, March 31, 2000, March 31, 2001, March 31, 2002 and March 31, 2003. Landlord agreesagrees to reasonably cooperate with Tenant to substitute any letter of credit in accordance with this Section 40.02; provided, in the instance of that such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit cooperation shall be freely transferable by without expense or liability to Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit If at any time Tenant shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant monetary default or material non-monetary default under this Lease, this Section 40.02 shall be null and in addition void and of no further force and effect and Tenant shall entitle Landlord have no further right to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying reduce the amount of the Letter of Credit Proceeds so utilized security held by Landlord, Tenant shall immediately deliver to Landlord an amendment pursuant to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit40.
Appears in 2 contracts
Sources: Office Lease (Exodus Communications Inc), Office Lease (Exodus Communications Inc)
Security. DEPOSIT Tenant has deposited with Landlord the sum of Thirty Thousand One Hundred and Eighty Dollars (a) Tenant, at Tenant’s sole cost and expense, $30,180.00). Said sum shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) be held by Landlord as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of all the terms, provisionscovenants, covenants and conditions of this Lease or any other document executed to be kept and performed by Tenant in connection during the term hereof. If Tenant defaults with respect to any provision of this Lease, Lease including, but not limited to, the payment of Rent or the repair of damage provisions relating to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when duerent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) use, apply or retain all or any part of this security deposit for the payment of any rent or any other sum in default, or for the payment of any amount which Landlord may spend or become obligated to spend by reason of Tenant's default to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's default. If any portion of said deposit is so used or applied, Tenant shall, within five (5) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount and Tenant's failure to do so shall be a material breach of this Lease. Landlord shall not be required to keep this security deposit separate from its general fund and Tenant shall not be entitled to interest on such deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the security deposit or any balance thereof in any manner Landlord is permitted shall be returned to use Tenant (or, at Landlord's option, to the Security under this Article Fivelast assignee of Tenant's interest hereunder) at the expiration of the Lease term. In the event Landlord draws upon the Letter of Credit and elects not to terminate the termination of Landlord's interest in this Lease, but Landlord shall transfer said deposit to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Landlord's successor in interest. Tenant written notice specifying is entitled to a Security Deposit credit in the amount of $1,911.67 ($32,091.67 - $30,180.00) as a result of renegotiating the Letter of Credit Proceeds so utilized by Landlordexisting lease dated December 15, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit1988.
Appears in 2 contracts
Sources: Office Building Lease (Fair Isaac & Company Inc), Office Building Lease (Fair Isaac & Company Inc)
Security. (a) TenantA. Tenant shall, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s upon execution and delivery of this Lease to Landlordlease, deposit with Landlord the Letter sum of Credit Two Hundred Thousand (defined below$200,00.00) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If lease; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or rent and additional rent, and fails to cure the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)same within any applicable grace and/or notice periods, then then, Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performdefault in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part any portion of the Security, Security Tenant shall within ten (10) business days after immediately upon Landlord’s demand pay or deliver to Landlord in immediately available funds the sum necessary to replace restore the amount used, so applied or retainedso that Landlord has on deposit the full amount of Security. If In the event that Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be promptly returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the land and Building or transfer leasing of Landlord’s interest in the Building, of which the Demised Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If B. In lieu of the cash security provided for above, Tenant fails timely may deliver to perform any obligation under this Article FiveLandlord, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Leasean irrevocable, except such notice and cure period expressly provided under this Article Five.
(d) As used hereinclean, “Letter of Credit” shall mean an unconditional, irrevocable sight draft commercial letter of credit issued, presentable in the amount of $200,000.00 DOLLARS and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion 00/100 (the “BankLetter”), naming Landlord as beneficiaryissued by a bank which is authorized, or a bank that has a corresponding banking relationship with a bank which is authorized, by the State of New York to conduct banking business in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while New York State and is a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt member of the substitute. The Letter of Credit New York Clearing House Association, which shall provide: permit Landlord (ia) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit thereon up to the full amount thereof, as determined by Landlord, and of the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, credit evidenced thereby in the event of assignment any default by Tenant in the terms, provisions, covenants or other transfer conditions of either Landlord’s interest in this Lease beyond applicable grace, notice and/or cure periods or of (b) to draw the full amount thereof to be held as cash security pursuant to Article 34 hereof if for any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), reason the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, is not renewed within forty five (45) days prior to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transfereeits expiration date. The Letter of Credit (and each renewal thereof) shall (i) be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer not less than one (1) year, year (except that the last Letter shall be “evergreen”for a term expiring forty five (45) days after the Expiration Date), and shall be extended, reissued or replaced by Tenant, (ii) expressly provide for the issuing bank to notify Landlord in each case at least writing not less than thirty (30) days prior to its expiration in as to its renewal or non-renewal, as the case may be, and (iii) if not so renewed each year (or later period of expiration) shall be immediately available for Landlord to draw up to the full amount of such credit (to be held as cash security). Not less than forty-five (45) days prior to the expiration date of each Letter (and every renewal thereof), Tenant shall deliver to Landlord a manner that fully complies renewal or new Letter subject to all of the conditions aforesaid. Failure by Tenant to comply with the requirements provisions of this Article Fivebeyond applicable grace, so that in all events the Letter of Credit required hereunder notice and/or cure periods shall be deemed a material default hereunder entitling Landlord to exercise any and all remedies as provided in this Lease for default in the payment of fixed rent and, to draw on the existing Letter up to its full force amount. Provided Tenant is not then and effect continuously until has not been (during the date first five (the “L/C Expiration Date”5) for return Lease Years of the Security described term) in Subsection default hereunder and provided Tenant has a net operating income of at least $3,500,000 during the fifth Lease Year, (a) above. No more often than once per year, Landlord which shall have the right to require Tenant to deliver be documented to Landlord’s reasonable satisfaction, on 15 days prior notice, including but not limited to delivery of a replacement Letter of Credit certified statement from a nationally recognized certified public accountant) then commencing on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer fifth anniversary of the Letter Commencement Date of Credit. Any advice from this Lease, the issuer that it intends security shall be reduced by Eighty Nine Thousand Two Hundred Forty Seven Dollars ($89,247.00) to withdraw or not extend One Hundred Ten Thousand Seven Hundred and Fifty Three Dollars ($110,753.00), which amount shall remain the Letter security for the balance of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle term of the Landlord to immediately draw upon the Letter of CreditLease.
Appears in 2 contracts
Sources: Office Lease, Office Lease Agreement (Neutral Tandem Inc)
Security. A. Subtenant has deposited with Sublandlord a letter of credit (athe ”Letter”) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of $175,000.00 (the “Security specified in Amount”), complying with the requirements of Section 1.01(1321(B) hereof, as security (“Security”) for the full and faithful punctual performance by Tenant Subtenant of each and every term, provision, covenant, and condition all of the terms of this LeaseSublease. At the election of Sublandlord such Security shall be held by Sublandlord in the form of the Letter or as cash. If Tenant fails timely to perform (within applicable notice and cure periods) Subtenant defaults in the performance of any of the terms, provisions, covenants and conditions terms of this Lease or any other document executed by Tenant in connection with this LeaseSublease, including, but not limited to, including the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Rental, then Landlord Sublandlord may use, apply, apply or retain the whole or any part of the Security so deposited to the extent required for the payment of any Rent not paid when due, rent or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord Sublandlord may expend or may be required to expend by reason of Tenant’s failure to performSubtenant's default in respect of any of the terms, and otherwise for compensation of Landlord for any other loss provisions or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage conditions set forth in this Sublease or deficiency in the reletting of Prime Lease (to the Premises (extent incorporated herein), whether such loss, damages or deficiency accrue accruing before or after summary proceedings or other re-entry by LandlordSublandlord. In the case of every such use, application or retention, Subtenant, on demand, shall cause the Letter or cash deposit, as the case may be, to be restored to the full Security Amount as provided in Section 21(B) below with respect to the Letter, and any failure by Subtenant to do so on demand shall constitute a default under this Sublease. If any bankruptcy, insolvency, reorganization or other creditor debtor proceedings shall be instituted by or against Subtenant, or its successors or assigns, any Security deposited with Sublandlord pursuant to this Section shall be deemed to be applied first to the payment of any rents and/or other charges due Sublandlord for all periods prior to the institution of such proceedings and the amount balance, if any, of such security deposited with Sublandlord may be retained by Sublandlord in partial liquidation of Sublandlord's damages. If Subtenant shall fully and punctually comply with all of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 terms of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, the Security (except any amount retained for application by Landlord Letter or cash deposit, as provided herein) the case may be, shall be returned or paid over to Tenant no later than sixty (60) days Subtenant after the latest of: (i) the Termination Date; (ii) the removal termination of Tenant from the Premises; (iii) the surrender this Sublease and delivery of exclusive possession of the Sublease Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecuritySublandlord. In the event of any sale, a sale or lease or transfer of Landlord’s interest in the Building, Landlord Sublandlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any Sublandlord shall upon such transfer shall release Landlord be released by Subtenant from all liability for the return of the Security. Tenant thereafter shall such security and Subtenant agrees to look solely to such vendee, transferee or lessee the new landlord for the return of said security. The provisions of this Section shall apply to every transfer or payment assignment made of the Securitysecurity to a new landlord. Tenant Subtenant shall not assign or encumber or attempt to assign or encumber the Security money deposited herein as security and neither Sublandlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignmentattempt, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article FiveB. The Letter shall be an irrevocable, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Leaseclean, except such notice unconditional and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft transferable commercial letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agreescredit, in the instance form of such substitute Exhibit D attached hereto and made a part hereof and issued by a reputable banking institution approved by Sublandlord in its sole, but reasonable judgment, which Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: permit Sublandlord (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit thereon at a location in New York City or in New Jersey up to the full amount thereofof the credit evidenced thereby for the payment of amounts due under the terms, as determined by Landlordprovisions, and the Bank will pay to Landlord the amount covenants or conditions of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; this lease and (ii) that, to draw at a location in the event of assignment New York City or other transfer of either Landlord’s interest in this Lease New Jersey or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes)by facsimile, the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit full amount required thereof to be maintained hereunder shall be increased proportionately held as cash security if for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase reason the Letter of Credit amount is not renewed within twenty forty-five (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (3045) days prior to its expiration date. The Letter (and each renewal thereof) shall (i) be for a term of not less than one (1) year (except that the last Letter shall be for a term expiring sixty (60) days after the Expiration Date); (ii) expressly provide for the issuing bank to notify Sublandlord in writing not less than sixty (60) days prior to its expiration as to its renewal or non-renewal, as the case may be; (iii) be fully transferable by the beneficiary thereof to its successors and assigns; and (iv) be in form and substance reasonably approved by Sublandlord. The Letter shall expressly provide that the issuing bank shall pay to Sublandlord or its duly authorized representative an amount up to the face amount of the Letter upon presentation of the Letter and a manner sight draft in the amount to be drawn. Not less than forty-five (45) days prior to the expiration date of each Letter (and every renewal thereof), Subtenant shall deliver to Sublandlord a renewal or new Letter subject to all of the conditions aforesaid, all to the intent and purposes, that fully complies a Letter in the sum of not less than the Security Amount shall be in effect during the entire Term and the failure of the Letter to be timely renewed or replaced shall be a default by Subtenant hereunder notwithstanding that Sublandlord may be retaining such cash security. If Sublandlord applies or retains any portion or all of the proceeds of the Letter, Subtenant shall restore the amount so applied or retained by causing the bank issuing the Letter to issue an amendment thereto, or if no Letter was then outstanding by causing a new Letter to be issued so that, at all times, the amount of the Letter which may be drawn upon shall be at least equal to the Security Amount. If the financial institution which issued such Letter enters into any form of regulatory or governmental receivership, conservatorship or other similar regulatory or governmental proceeding including, without limitation, any receivership or conservatorship initiated or commenced by or on behalf of the Federal Deposit Insurance Corporation (FDIC), or is otherwise declared insolvent or downgraded by the FDIC or closed for any reason, Subtenant shall immediately deliver to Sublandlord a substitute letter of credit from a financial institution acceptable to Sublandlord, in its sole and absolute discretion. Failure by Subtenant to comply with the requirements provisions of this Article Five, so that in all events the Letter of Credit required hereunder shall be deemed a material default hereunder entitling Sublandlord to exercise any and all remedies as provided in full force and effect continuously until this Sublease for default in the date (the “L/C Expiration Date”) for return payment of the Security described in Subsection (a) above. No more often than once per yearRental and, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit draw on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in existing Letter up to its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditfull amount.
Appears in 2 contracts
Sources: Sublease Agreement (Enzon Pharmaceuticals Inc), Sublease Agreement (Enzon Pharmaceuticals Inc)
Security. (a) Tenant, at To secure Tenant’s sole cost obligations under this Lease to pay Rent and expenseother monetary amounts, to maintain the Premises and repair damages thereto, to surrender the Premises to Landlord in clean and sanitary condition and repair upon termination of this Lease as required pursuant to Section 18.15 below and to discharge Tenant’s other obligations hereunder, Tenant shall provide deliver to Landlord, simultaneously concurrently with Tenant’s execution and delivery of this Lease Lease, a letter of credit in the amount of Two Hundred Nine Thousand Four Hundred Fifty Dollars ($209,450) (“Letter of Credit”). Said Letter of Credit shall be substantially in the form and of the substance of Exhibit F attached hereto, and issued by Silicon Valley Bank, or another financial institution reasonably acceptable to Landlord, with . Tenant shall replace the Letter of Credit with another Letter of Credit that meets the requirements set forth above for at least thirty (defined below30) days before the Letter of Credit expires. Upon any default by Tenant which has not been cured within the applicable time period after any notice required by this Lease, including specifically but without limitation Tenant’s obligation to pay Rent or cash abide by any of its obligations under this Lease, Landlord shall be entitled to draw upon said Letter of Credit in the amount of the Security specified in Section 1.01(13default(s) as security by the issuance of Landlord’s sole written demand to the issuing Verus Lease v06 -6- February 2, 2005 (“Security”8:51 pm) for the full and faithful performance by Tenant financial institution. Any such draw shall be without waiver of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of rights Landlord may have under this Lease or any other document executed by Tenant at law or in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part equity as a result of the Security for default. If any portion of the payment Letter of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned Credit is drawn after a default by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall shall, within ten seven (107) business days after written demand pay or deliver by Landlord restore the Letter of Credit to its original amount. Provided that (a) Tenant is not in default in the performance of any of its obligations under this Lease on the date which is four (4) years after the Effective Date of this Lease (“Letter of Credit Termination Date”) and (b) Tenant can establish by delivering to Landlord in immediately available funds the sum necessary evidence reasonably acceptable to replace the amount used, applied or retained. If Landlord that Tenant has fully as of the Letter of Credit Termination Date, and faithfully performed has continually had during the two (2) calendar quarters preceding the Letter of Credit Termination Date, liquid assets consisting of cash or cash equivalents (bonds and observed all publicly traded securities) reserves of not less than Five Million Dollars ($5,000,000) and a ratio of current assets to current liabilities, as determined by generally accepted accounting principles, consistently applied, of not less than two-to-one (“Tenant’s Financial Requirement”), subject, however, to Tenant delivering to Landlord the Security Deposit described below in this Section 4.05, the obligation of Tenant to maintain the Letter of Credit shall terminate as of the Letter of Credit Termination Date. As a condition to the termination of Tenant’s obligation to maintain the Letter of Credit, Tenant shall deposit with Landlord on or before the Letter of Credit Termination Date an amount equal to the Base Rent payable for the month which contains the Letter of Credit Termination Date (“Security Deposit”). The Security Deposit when delivered shall secure Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application Lease secured by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may use and commingle the Security Deposit with other funds of Landlord. If Tenant fails to perform Tenant’s obligations hereunder, Landlord may, but without any obligation to do so, apply all or any portion of the Security Deposit towards fulfillment of Tenant’s unperformed obligations. If Landlord does so apply any portion of the Security Deposit, Tenant, shall immediately pay Landlord a sufficient amount in cash to restore the Security Deposit to the full original amount. In the event that Landlord shall expend the same in order to cure Tenant’s default hereunder, Tenant’s failure to forthwith remit to Landlord a sufficient amount in cash to restore the Security Deposit to the original sum deposited within five (but 5) days after Tenant’s receipt of notice from Landlord that such amounts have been so expended shall not constitute an Event of Default. The Security Deposit shall be required to) draw upon held by Landlord without liability for interest on the same. Upon termination of this Lease, if Tenant has then performed all of Tenant’s obligations hereunder, Landlord shall return the Security Deposit to Tenant. If Landlord sells or otherwise transfers Landlord’s rights or interest under this Lease, Landlord may deliver the Security and Security Deposit to the transferee, whereupon Landlord shall be released from any further liability to Tenant with respect to the Security and Security Deposit. Notwithstanding anything to the contrary contained in this Section 4.05, in the event the obligation of Tenant to maintain the Letter of Credit is terminated as provided above, if at any subsequent time during the Term of this Lease, including any extensions thereof, from and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon after the Letter of Credit and elects not Termination Date, Tenant shall fail to terminate maintain the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by LandlordTenant’s Financial Requirement, Tenant shall immediately deliver give written notice thereof to Landlord an amendment to the Letter of Credit or and cause a replacement Letter letter of Credit in an amount equal credit to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure be delivered to deliver such amendment or replacement of the Letter of Credit to Landlord Landlord, within ten (10) business days 10)days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (Tenant fails to meet the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article FiveTenant’s Financial Requirement, in the event that Landlord determinesamount, in its good faith judgmentand on the other terms of, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the original Letter of Credit.
Appears in 2 contracts
Sources: Consent to Assignment Agreement (Zogenix, Inc.), Consent to Assignment Agreement (Zogenix, Inc.)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, The Tenant will deposit with the Letter Landlord the sum of Credit $16,667.00, on the Rent Commencement Date, representing one (defined below1) or cash in the amount month of rent as security payment of the Security specified in Section 1.01(13) as security (“Security”) for rent hereunder and the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of Of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage herein. Said sum shall be returned to the Premises caused by Tenant (excluding normal wear and tear)Tenant, then Landlord may usewithout interest, apply, or retain after the whole or any part expiration of the Security for term hereof, provided that the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, such covenants and conditions of this Leaseand is not in arrears in rent. During the term hereof, the Security (except Landlord may, if the Landlord so elects, have recourse to such security, to make good any amount retained default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to the Premises, whether any change in ownership thereof be by voluntary alienation or as the result if judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for application by Landlord the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to the Premises, in which case the assignee shall become liable for the repayment thereof as provided herein) herein provided, and the assignor shall be returned or paid over deemed to Tenant no later than sixty (60) days after be released by the latest of: (i) the Termination Date; (ii) the removal of Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in titled and shall in no wise be deemed to permit the Premises; (iii) Landlord to retain the surrender security after termination of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action ownership of the reversion or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordtitle. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. The Tenant shall not be entitled to any interest on mortgage, encumber or assign the Security. In security without the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return written consent of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsLandlord.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Lease Agreement (Notes Live, Inc.), Lease Agreement (Fresh Vine Wine, Inc.)
Security. (a) Tenant, at Tenant’s sole cost and expense, Tenant shall provide deposit with Landlord, simultaneously with upon Tenant’s execution and delivery of this Lease to LandlordLease, with the Letter of Credit (defined below) or cash security deposit specified in the amount Paragraph N of the Basic Lease Provisions (“Security specified in Section 1.01(13Deposit”) with Landlord as security (“Security”) for the full and faithful performance by Tenant of each every term and every term, provision, covenant, and condition covenant of this Lease. If In the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in the performance of any of the termsits obligations hereunder, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with otherwise breaches this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole all or any part portion of the Security Deposit for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which amount due Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of reimburse or compensate Landlord for any other liability, cost, expense, loss or damage to (including attorneys’ fees) which Landlord occasioned shall suffer or incur by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Leasereason thereof. If Landlord so uses, uses or applies or retains all or part any portion of the SecuritySecurity Deposit, Tenant shall shall, within ten (10) business days after demand pay written request therefore deposit monies with Landlord sufficient to restore the Security Deposit to the full amount required by this Lease. Upon the expiration or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully earlier termination of this Lease and faithfully performed and observed performance of all of Tenant’s obligations under the termshereunder, provisions, covenants and conditions of this Lease, Landlord shall return the Security (except Deposit or any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect balance thereof to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in itDeposit, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return entitled to commingle the Security Deposit with its general funds. No part of the Security Deposit shall be considered to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord be held in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credittrust, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunderbear interest for its use, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall a prepayment for any-monies to be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default paid by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Office Lease (Equillium, Inc.), Office Lease (Equillium, Inc.)
Security. Upon the termination of the Guarantor's obligations under Section 3 or if the excess of aggregate amount paid by the Guarantor under Section 3 over the aggregate of any amounts reimbursed to it pursuant to the terms of the Management Agreement equals not less than Fifty Million dollars (a) Tenant$50,000,000), at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease HPT will return to Landlord, with the Guarantor any Satisfactory Letter of Credit previously delivered to HPT or any unapplied cash collateral then being held by HPT hereunder and shall direct the Collateral Agent to return any cash being held by it under the Collateral Agency Agreement to the Guarantor. HPT shall be entitled to draw upon any Satisfactory Letter of Credit delivered to it (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”a) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) amount thereof if at any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later time there is less than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner until the expiry date of such Satisfactory Letter of Credit; (b) for the full amount thereof if the bank that fully complies with the requirements of this Article Five, so that in all events the issued such Satisfactory Letter of Credit required hereunder shall be in full force and effect continuously until not have a credit rating of at least A/A2 (or, if after the date (hereof the “L/C Expiration Date”system of ratings used by the Rating Agencies changes in a material way, their then equivalents in HPT's reasonable judgment) for return of from the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Rating Agencies and such satisfactory Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or shall not extend the have been replaced within thirty (30) days with a new Satisfactory Letter of Credit prior delivered to HPT; or (c) to the extent and in the amounts then due and payable hereunder, if the Guarantor shall fail to pay or perform any scheduled annual expiration of its obligations under this Guaranty in accordance with the terms hereof. HPT shall be entitled to apply any cash collateral held by it or the L/C Expiration Date Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment. Any cash collateral held by HPT shall entitle not be commingled with its other funds, and shall be invested, at the Landlord Guarantor's risk, in interest bearing investments reasonably acceptable to immediately draw upon the Letter of CreditGuarantor. Any interest on such cash collateral, and any losses in such investments, shall belong to IHG.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Hospitality Properties Trust), Guaranty Agreement (Hospitality Properties Trust)
Security. (aA) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease At all times prior to Landlord, with the Letter of Credit (defined below) or cash in the amount expiration of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition term of this Lease. If Tenant fails timely to perform (within applicable notice , TENANT shall maintain on deposit with OWNER the sum of $243,109.90 as security for the due and cure periods) any faithful payment, as herein provided, of the rent, additional rent, charges and damages payable by TENANT under this Lease or pursuant to law and for the due and faithful keeping, observance and performance of all the other covenants, agreements, terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaseon the part of TENANT to be kept, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear observed and tear), then Landlord performed. TENANT expressly acknowledges and agrees that OWNER may use, apply, apply or retain the whole or any part of the Security security deposit under this Lease for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord TENANT is in default or for any sum which OWNER may expend or may be required to expend by reason of TenantTENANT’s failure to performdefault in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord this Lease, as well as for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (whether demised premises caused by TENANT’S default, whatever such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) OWNER, all of the foregoing in such order and priority as OWNER may elect in its sole discretion. In the event any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings shall be instituted by or against TENANT, or its successors or assigns, the security deposit shall be deemed to be applied first to the payment of any rents and/or other charges due OWNER for all periods prior to the institution of such proceedings, and/or, at OWNER’s option, in partial liquidation of OWNER’s damages arising from such default of proceeding(s). If as a result of any such application to all or any part of such security, the amount of cash so on deposit with OWNER (exclusive of any interest) shall be less than the unpaid past Rentamount set forth above, future Rent loss, and all other losses, costs and damages that Landlord would be entitled TENANT shall deposit with OWNER cash in an amount equal to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall deficiency within ten (10) business days after demand demand. The TENANT’s obligation to pay such deficiency shall be treated as if it was an obligation to pay fixed rent or deliver additional rent and shall be subject to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of the remedies for non-payment of fixed rent. The security deposit (if held by OWNER and not provided in a letter of credit) shall be held in an interest bearing account and the interest earned thereon, less the maximum annual administrative fee allowable to OWNER under law, shall be deemed a part of the security deposit. Notwithstanding anything to the contrary contained hereinabove or elsewhere in this Lease, in the event that Tenant’s obligations under , for a fourth time, is ever in monetary default or material non-monetary default (beyond any cure period as may apply) of any of the covenants, agreements, terms, provisions, covenants provisions and conditions of this Lease, then, OWNER, at its option, may elect to require TENANT to deposit (or to increase the letter of credit), within ten (10) days after notice from OWNER, an additional month’s security under this Lease (calculated at the then monthly rate of fixed rent payable under this Lease), and thereafter the amount of security required to be maintained by Tenant throughout the term of this Lease shall be increased by such amount.
(B) Notwithstanding the foregoing, in lieu of a cash deposit, TENANT may deliver to OWNER a clean, irrevocable and unconditional standby Letter of Credit (the “Letter of Credit”) issued by and drawn upon Silicon Valley Bank or any commercial bank (hereinafter referred to as the “Issuing Bank”) having a tangible net worth of not less than One Billion and 00/100 ($1,000,000,000.00) Dollars, which Letter of Credit may be drawn by facsimile draft (if the issuer’s offices are located outside the City of New York), shall have a term of not less than one year, be in form and content acceptable to OWNER, be for the account of OWNER, and be in the amount of the Security (except Deposit. In the event TENANT defaults in the performance of any amount of the terms of this Lease, including the payment of rent, beyond any applicable cure period, or in the event of the filing of a bankruptcy proceeding by or against TENANT, OWNER may use, apply or retain the whole or any part of the Security Deposit, as represented by the Letter of Credit, by drawing down on the same to the extent required for the payment of any rent or for any sum which OWNER may expend or may be required to expend by reason of TENANT’s default in respect of any of the terms of this Lease, including any damages or deficiency in the re-letting of the demised premises after termination of the Lease for Tenant’s default, whether accruing before or after summary proceedings or other re-entry by OWNER. In the case of every such use, application or retention, TENANT shall, on demand, pay to OWNER the sum so used, applied or retained for application by Landlord as provided herein) which shall be returned added to the Security Deposit so that the same shall be replenished to its former amount, or, restore the Letter of Credit to the original required amount. The Letter of Credit shall provide that:
(i) The Issuing Bank shall pay to OWNER or paid over its duly authorized representative an amount up to Tenant no later the face amount of the Letter of Credit upon presentation of the Letter of Credit and a sight draft in the amount to be drawn;
(ii) The Letter of Credit shall be deemed to be automatically renewed, without amendment, for consecutive periods of one year each during the term of this Lease (and shall remain in effect for not less than sixty (60) days after following the latest of: expiration date of the Lease), unless the Issuing Bank sends written notice (ihereinafter referred to as the “Non-Renewal Notice”) to OWNER by certified or registered mail, return receipt requested, or national overnight courier service requiring receipt, not less than sixty (60) days next preceding the Termination Date; then expiration date of the Letter of Credit, that it elects not to have such Letter of Credit renewed. OWNER covenants and agrees to return the Letter of Credit to Tenant on or before the sixty-first (ii61st) day following the removal expiration or termination date of Tenant from the Premises; Lease;
(iii) If OWNER receives a Non-Renewal Notice and TENANT fails to provide a replacement Letter of Credit which meets the surrender requirements of this Lease with an effective date commencing on the day following the expiration of the Premises existing Letter of Credit not fewer than thirty (30) days prior to the expiration of the Letter of Credit, such failure shall constitute a material default under this Lease and OWNER shall have the right, exercisable by Tenant a sight draft, to Landlord in accordance with receive the monies represented by the Letter of Credit (which monies shall be held by OWNER as a cash deposit pursuant to the terms of the printed portion of this Lease, pending the replacement of such Letter of Credit or TENANT’s default after notice and the expiration of any applicable cure period hereunder); or however, OWNER’s holding of such cash security shall not be deemed a waiver of TENANT’s default of its obligation to maintain the security in the form of a Letter of Credit); and
(iv) Upon OWNER’s sale of OWNER’s interest in the date Rent Adjustments land and the Building, the Letter of Credit shall be transferable, without charge, by OWNER If a bankruptcy proceeding is filed by or against TENANT, OWNER shall have the right, exercisable by a sight draft, to receive monies represented by the Letter of Credit. If a voluntary termination of this Lease occurs, OWNER shall have the right, exercisable by sight draft, to receive monies represented by the Letter of Credit in order to satisfy any fees and payments owed by TENANT in connection with such termination, including without limitation, accrued but unpaid rents and/or other charges payable pursuant to the Lease and any termination fees and all other amounts owed by TENANT to OWNER pursuant to any written agreement entered into between them with respect to such termination. If TENANT shall owe any late charges or fees or interest on late payments to OWNER pursuant to this Lease or otherwise pursuant to legal process or law, OWNER shall have been computed the right, exercisable by Landlord and paid sight draft, to receive monies represented by Tenant. Provided, however, the Letter of Credit in no event shall any order to satisfy such return be construed as an admission amounts owed by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityTENANT. In the event of any sale, lease or transfer a sale of LandlordOWNER’s interest in the land and the Building, Landlord OWNER shall have the right to transfer (at no expense to OWNER) the Securitycash security or Letter of Credit, or balance thereofas the case may be, deposited hereunder to the vendeevendee or lessee, transferee or lessee and any such transfer OWNER shall release Landlord be released by TENANT from all liability for the return of the Securitysuch cash security or Letter of Credit. Tenant thereafter shall In such event, TENANT agrees to look solely to such vendee, transferee or lessee the new OWNER for the return of said cash security or payment Letter of Credit. It is agreed that the Securityprovisions hereof shall apply to every transfer or assignment made of said cash security or Letter of Credit to a new OWNER. Tenant shall TENANT covenants that it will not assign or encumber encumber, or attempt to assign or encumber encumber, the Security monies or any interest in itLetter of Credit deposited hereunder as security, and Landlord that neither OWNER nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment assignment, or attempted encumbrance, and regardless of one or more assignments . In the event that at any time during the term of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiaryOWNER, in an OWNER’s reasonable opinion, believes (a) that the net worth of the Issuing Bank shall be less than the minimum amount equal to $1,084,479.58 andspecified above, prior to any Reduction or (defined belowb) while a Letter of Credit is serving as Securitythat circumstances have occurred indicating that the Issuing Bank may be incapable of, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit unable to, or amendment to prohibited from honoring the then existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything (hereinafter referred to the contrary, Landlord hereby approves of Comerica Bank as the Bank“Existing L/C”) in accordance with the terms thereof, then, upon the happening of either of the foregoing, OWNER may send written notice to TENANT (hereinafter referred to as the “Replacement Notice”) requiring TENANT within fifteen (15) business days to replace the Existing L/C with a new letter of credit (hereinafter referred to as the “Replacement L/C”) from an Issuing Bank meeting the qualifications described hereinabove. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after Upon receipt of a Replacement L/C meeting the substitute. The Letter of Credit qualifications, OWNER shall provide: (i) that Landlord may make partial and multiple draws thereunder, up forthwith return the Existing L/C to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article FiveTENANT. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten that (10i) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “Replacement L/C Expiration Date”meeting the qualifications is not received by OWNER within the time specified, or (ii) for return of OWNER reasonably believes an emergency exists, then in either event, the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the Existing L/C Expiration Date may be presented for payment by OWNER and the proceeds thereof shall entitle the Landlord be held by OWNER in accordance with this Lease, subject, however, to immediately draw upon the Letter TENANT’s obligation to replace such cash security with a new letter of Creditcredit meeting said qualifications.
Appears in 2 contracts
Sources: Lease Agreement (Zentalis Pharmaceuticals, Inc.), Lease Agreement (Zentalis Pharmaceuticals, LLC)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with On the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited toClosing Date, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant Issuer shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) enter into the Termination Date; Escrow Agreement and comply with the terms and provisions thereof and (ii) cause the removal Collateral to be pledged to the Trustee for the benefit of Tenant the Holders in an amount equal to the net proceeds to be received by the Issuer from the Premises; (iii) the surrender sale of the Premises Notes. The Collateral shall be pledged by Tenant the Issuer to Landlord the Trustee for the benefit of the Holders and shall be held by the Trustee in accordance with this Lease; or (iv) the date Rent Adjustments owed Cash Collateral Account pending disposition pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all the terms of its obligations hereunderthe Escrow Agreement.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment Each Holder, by its acceptance of any kinda Note, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds consents and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, agrees to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return terms of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord Escrow Agreement (including, without limitation, consolidationsthe provisions providing for foreclosure and release of the Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms, mergersand authorizes and directs the Trustee to enter into the Escrow Agreement and to perform its respective obligations and exercise its respective rights thereunder in accordance therewith. The Issuer will do or cause to be done all such acts and things as may be necessary or proper, reorganizations or as may be required by the provisions of the Escrow Agreement, to assure and confirm to the Trustee the security interest in the Collateral contemplated hereby, by the Escrow Agreement or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Issuer shall take, or shall cause to be taken, any and all actions reasonably required (and any action requested by the Trustee) to cause the Escrow Agreement to create and maintain, as security for the obligations of the Issuer under this Indenture and the Notes, valid and enforceable first priority liens in and on all the Collateral, in favor of the Trustee, superior to and prior to the rights of third Persons and subject to no other Liens.
(c) The release of any Collateral pursuant to the Escrow Agreement will not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral is released pursuant to this Indenture and the Escrow Agreement. To the extent applicable, the Issuer shall cause TIA Section 314(d) relating to the release of property or securities from the Lien and security interest of the Escrow Agreement (other than pursuant to Sections 7(c) and 7(d) thereof) and relating to the substitution therefor of any property or securities to be subjected to the Lien and security interest of the Escrow Agreement to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Issuer, except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other entity changesexpert selected by the Issuer.
(d) The Issuer shall cause TIA Section 314(b), relating to opinions of counsel regarding the Letter of Credit shall Lien under the Escrow Agreement, to be freely transferable by Landlord, without charge and without recoursecomplied with. The Trustee may, to the assignee or transferee extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive evidence of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies compliance with the requirements of this Article Five, so that foregoing provisions the appropriate statements contained in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date such instruments.
(the “L/C Expiration Date”e) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determinesThe Trustee, in its good faith judgmentsole discretion and without the consent of the Holders, that may, and at the issuing Bank is no longer satisfactory request of the Holders of at least 25% in aggregate principal amount of Notes then outstanding shall, on behalf of the Holders, take all actions it deems necessary or appropriate in order to remain (i) enforce any of the terms of the Escrow Agreement and (ii) collect and receive any and all amounts payable in respect of the obligations of the Issuer thereunder. The Trustee shall have power to institute and to maintain such suits and proceedings as the issuer Trustee may deem expedient to preserve or protect its interests and the interests of the Letter Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of Credit. Any advice from or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the issuer that it intends enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to withdraw the interests of the Holders or not extend of the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditTrustee).
Appears in 2 contracts
Sources: Indenture (Multicare Companies Inc), Indenture (Genesis Eldercare Acquisition Corp)
Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (a) Tenantunless such redemption affects only a single Security), at Tenant’s sole cost the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, specified tenor not previously called for redemption in accordance with the Letter preceding sentence. If any Security selected for partial redemption is converted in part before termination of Credit the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (defined belowso far as may be) to be the portion selected for redemption. Securities that have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed. The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or cash in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty in an authorized denomination (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security which shall not be deemed an advance Rent deposit or an advance payment less than the minimum authorized denomination) for such Security. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any kind, Securities redeemed or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth redeemed only in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereofpart, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return portion of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the principal amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents Securities which has been or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required is to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditredeemed.
Appears in 2 contracts
Sources: Indenture (Cell Genesys Inc), Indenture (Cell Genesys Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Tenant has deposited with Tenant’s execution and delivery Owner the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $50,706.68 as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If lease; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord Owner may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when duerent and additional rent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Landlord Tenant is in default, or for any sum which Owner may expend or may be required to expend by reason of Tenant’s failure to performdefault in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (demised premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Owner. In the amount case of the unpaid past Rentevery such use, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies application or retains all or part of the Securityretention, Tenant shall shall, within ten five (105) business days after demand demand, pay or deliver to Landlord in immediately available funds Owner the sum necessary to replace the amount so used, applied or retainedretained which shall be added to the security deposit so that the same shall be replenished to its former amount. If In the event that Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner. In the event of any salea sale of the land and building, lease or transfer leasing of Landlord’s interest in the Buildingbuilding, Landlord of which the demised premises form a part, Owner shall have the right to transfer the Security, or balance thereof, security to the vendeevendee or lessee, transferee or lessee and any such transfer Owner shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Owner solely to such vendee, transferee or lessee for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Owner. Tenant shall further covenants that it will not assign or encumber encumber, or attempt to assign or encumber encumber, the Security or any interest in itmonies deposited herein as security, and Landlord that neither Owner nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 2 contracts
Sources: Sub Lease Agreement (Loxo Oncology, Inc.), Lease Agreement (Loxo Oncology, Inc.)
Security. (a) Tenant has deposited with Landlord, as security for Tenant’s compliance with this lease, the Security, in cash or, if requested by Landlord or Tenant, at Tenant’s sole cost by a standby letter of credit on the terms, and expensesubstantially in the form, shall provide Landlordattached to this lease as Exhibit D, simultaneously with Tenant’s execution issued by a bank that is a member of the New York Clearing House Association, L.L.C. having its principal office in the City of New York and delivery of this Lease otherwise acceptable to Landlord, with Landlord (the “Letter of Credit (defined below) Credit”). If there is a Default, Landlord may use all or cash in the amount any portion of the Security specified in Section 1.01(13) as security (“Security”) for to cure the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease Default or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, amount due and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant payable from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; lease. Tenant shall, within 15 days following Landlord’s notice, deposit with Landlord in cash or by a Letter of Credit an amount sufficient to restore the full amount of the Security (ivwithout giving consideration to any interest accrued on the Security). Landlord shall not, unless required by any Law, pay interest to Tenant on the Security, and if Landlord is required to maintain the Security in an interest bearing account or pay any interest to Tenant, Landlord shall retain the maximum amount of interest permitted under any Law (which Landlord may withdraw and retain annually or at any other times). Tenant shall not assign (other than to a permitted assignee of this lease) or encumber the date Rent Adjustments owed pursuant to this Lease have been computed Security, and no prohibited assignment or encumbrance by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The the Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of bind Landlord. Landlord shall not be required to keep exhaust its remedies against Tenant or the Security separate from its general funds before having recourse to Tenant, any Guarantor, the Security or any other security held by Landlord, or before exercising any right or remedy, and recourse by Landlord to any one of them, or the exercise of any right or remedy, shall not have affect Landlord’s right to pursue any fiduciary duties other right or other duties (except as set forth remedy or Landlord’s right to proceed against the others. If there is then no uncured Default, the Security and any accrued and unpaid interest thereon, or any balance, shall be paid or delivered to Tenant promptly after the Expiration Date and Tenant’s vacating of the Premises in accordance with this Article Five) concerning the Securitylease. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of If Landlord’s interest in the BuildingBuilding is sold or leased, Landlord shall have the right to transfer the SecuritySecurity and any accrued and unpaid interest thereon, or balance thereofany balance, to the vendeenew Landlord and, transferee or lessee and any upon such transfer transfer, the assignor shall release Landlord thereupon be automatically released by Tenant from all liability for the return of the Security. Security or any interest (and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the assignee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return interest). If the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute is by a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter following provisions of Credit promptly after receipt of the substitute. The Letter of Credit this Section shall provide: apply (i) that Landlord may make partial and multiple draws thereunder, up in addition to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements provisions of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.Article):
Appears in 2 contracts
Sources: Office Lease, Office Lease
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Concurrently with Tenant’s the execution and delivery of this Lease Lease, Tenant shall deposit with Landlord a sum equal to Landlord, with twice the Letter of Credit (defined below) or cash in Total Monthly Rent applicable during the amount first year of the Lease, i.e., the sum of $117,970.78 (the "Security specified in Section 1.01(13) Deposit"), which sum shall be retained by Landlord as security (“Security”) for the full payment by Tenant of the rents herein agreed to be paid by Tenant and for the faithful performance by Tenant of each the terms and every term, provision, covenant, and condition covenants of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) It is agreed that Landlord, at Landlord's option, may at any time apply said sum or any part thereof toward the payment of the terms, provisions, covenants rents and conditions of this Lease or any all other document executed sums payable by Tenant in connection with under this Lease, includingand towards the performance of each and every of Tenant's covenants under this Lease, but not limited to, the payment of Rent or the repair of damage such covenants and Tenant's liability under this Lease shall thereby be discharged only pro tanto; that Tenant shall remain liable for any amounts that such sum shall be insufficient to the Premises caused by Tenant (excluding normal wear and tear), then pay; that Landlord may use, apply, exhaust any or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required all rights and remedies against Tenant before resorting to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, includingsaid sum, but not limited to, any loss of future Rent and any damage nothing herein contained shall require or deficiency be deemed to require Landlord so to do; that in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord does so uses, applies or retains apply all or part of the Securitysaid Security Deposit, then Tenant shall pay Landlord a sum sufficient to restore the to the then-required amount (within 10 days of being billed for same); that, in the event this Security Deposit shall not be utilized for any such purposes, then such Security Deposit shall be returned by Landlord to Tenant within ten (10) business days next after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace expiration of the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions Term of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. pay Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the said Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amountDeposit. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) thatabove, in the event of assignment that Tenant's stockholders equity as reported by any annual report or other transfer of either Landlord’s interest in this Lease public announcement or of any interest in Landlord press release, declines below fifty million dollars (including, without limitation, consolidations, mergers, reorganizations or other entity changes$50,000,000.00), then in such event, Tenant shall additionally pay Landlord an additional sum as additional security deposit in an amount sufficient to raise the Letter of Credit shall be freely transferable by Landlordtotal Security Deposit to a sum equal to three (3) times Total Monthly Rental then in effect, without charge and without recourseas set forth on Schedule "C", to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transfereeattached. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following Upon written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized request by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent have seven (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (307) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditmake said payment.
Appears in 2 contracts
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Tenant has deposited with Tenant’s execution and delivery Owner the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $38,000 as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If lease; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord Owner may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Tenant is in default or for any sum which Owner may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Owner. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than within sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the Buildingdemised premises form a part, Landlord Owner shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Owner shall release Landlord thereupon be released by Tenant from all liability for return of such security, and Tenant agrees to look to the new Owner solely for the return of said security; and it is agreed that the Securityprovisions hereof shall apply to every transfer or assignment made of the security to a new Owner. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Owner nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. See Attached Rider, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.▇▇▇▇▇▇▇▇▇ ▇▇
Appears in 2 contracts
Sources: Lease Agreement (Blue Fish Clothing Inc), Lease Agreement (Blue Fish Clothing Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as As security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when duethe Borrowing, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required Borrower obliges itself to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency mortgage in the reletting favor of the Premises (whether Lender such loss, damages or deficiency accrue before or after summary proceedings or other re-entry real property as will be agreed upon by Landlord) the Lender and the Borrower (the “Collateral”) to ensure the outstanding amount of the unpaid past RentBorrowing. It is understood and agreed that all additions and accretions to, future Rent lossor replacements or substitutions of, said Collateral shall be made and all other losses, costs and damages that Landlord would be entitled subject to recover if Landlord were to pursue recovery under Section 11.02 the lien of this Lease. If Landlord so uses, applies or retains all or part mortgage and shall be held for the security and payment of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the outstanding amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; Borrowing including interest, expenses or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its other obligations hereunderowing to the Lender under this Agreement.
(b) The Security shall not be deemed an advance Rent deposit Borrower states that it is the sole and beneficial owner of the Collateral and the one in possession thereof free from any lien, encumbrance or an advance payment other security interest of any kindother person, except as otherwise disclosed in writing, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Fiveprovided under Section 6.02(d) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositshereof.
(c) If Tenant fails timely During the term and existence of this Agreement, the Borrower shall insure or cause to perform be insured at all times and at its own expense the Collateral against loss, fire, theft, pilferage, or otherwise, for the full insurance value payable to the Lender as its interest in the Collateral may appear, and it shall endorse and deliver the policy or policies of insurance to the Lender, and in default thereof, the Lender may, at its option, insure the Collateral and any obligation and all sums so paid by the Lender for such insurance shall be repayable with interest thereon at the same interest rate as being imposed under this Article Five, such breach Agreement and shall constitute a Default be considered covered by Tenant under this Lease without any herein mortgage. It is clearly understood that the Lender has the right to see and inspect the Collateral to find out their state or requirement condition, upon a prior written notice of any further notice or cure period under any other Article of this Lease, except such notice at least 24 hours submitted to the Borrower and cure period expressly provided under this Article Fiveonly to be conducted during regular business hours from 9:00 am to 5:00 pm.
(d) As used hereinThe Borrower shall not, “Letter during the existence of Credit” shall mean an unconditionalthe mortgage, irrevocable sight draft letter encumber with a second mortgage the Collateral, or any part thereof, without the written consent of credit issuedthe Lender.
(e) The Borrower may sell or dispose of the Collateral, presentable and payable at provided the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant Borrower shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt consent of the substitute. The Letter of Credit shall provide: Lender (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but which consent shall not be unreasonably withheld) and immediately replace the Collateral with other real property such that at all times it is maintained that the value of the mortgage is the outstanding amount of the Borrowing. In this case, the Borrower undertakes to execute a new mortgage document to cover the substitute collateral. It is agreed that the Borrower shall furnish all documentary stamps for the new Collateral and pay all fees for the notarization and registration (if required toby the Lender) draw upon of the Letter of Credit and use the proceeds therefrom documents connected therewith.
(the “Letter of Credit Proceeds”f) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter Borrower should fail to pay the Lender the sum of Credit and elects not to terminate money or Borrowing secured by this mortgage, or any part thereof, when due, or is in default within the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements meaning of this Article FiveAgreement, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord Lender shall have the right at their election, to require Tenant foreclose this mortgage in accordance with Applicable Law, and the proceeds of such sale of the mortgaged Collateral shall be applied in accordance with Section 2.07(b).
(g) The Borrower agrees and undertakes to execute and deliver to Landlorda Lender such other documents which said Lender may from time to time reasonably request from the Borrower in connection with the mortgage.
(h) Effective upon the breach of any condition of this mortgage and in addition to the remedies herein stipulated, on 15 days prior noticethe Lender are hereby appointed attorneys-in-fact of the Borrower with full powers and authority, a replacement Letter to take actual possession of Credit on the Collateral, without the necessity of any judicial order or any other permission or power, to sell or dispose of the Collateral or take any other legal action that may be deemed necessary, to lease any of the Collateral and collect rents therefor; to execute bills of sale, leases or agreements that may be deemed convenient; to make repairs or improvements to the Collateral and pay the same terms and conditions set forth in this Article Five, in perform any other act which the event that Landlord determines, in its good faith judgment, that Lender may deem convenient for the issuing Bank is no longer satisfactory to remain as the issuer proper administration of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditCollateral.
Appears in 2 contracts
Sources: Secured Loan Agreement, Secured Loan Agreement (Cannabis-Rx Inc.)
Security. (a) TenantWithin two (2) business days after the full execution of this Sublease and receipt of Prime Landlord’s Consent to the Sublease, Subtenant shall deliver to Sublandlord an irrevocable, clean, commercial letter of credit in favor of Sublandlord, in form and substance reasonably acceptable to Sublandlord, in the amount of One Million One Hundred Seventy Six Thousand Eighteen and 48/100 Dollars ($1,176,018.48) (“LC”), issued by a United States financial institution reasonably acceptable to Sublandlord (“LC Bank”), as security for the full and faithful performance and observance by Subtenant of the terms, covenants, and conditions of this Sublease. The use, application, or retention of the LC, or any portion thereof, by Sublandlord shall not prevent Sublandlord from exercising any other right or remedy provided by this Sublease or by law, it being intended that Sublandlord shall not first be required to proceed against the LC, and the LC shall not operate as a limitation on any recovery to which Sublandlord may otherwise be entitled. Subtenant shall cause the LC to remain in full force and effect during the entire Term and thereafter until sixty (60) days after the natural expiration or earlier termination (not due to an Event of Default (defined hereafter)) of this Sublease.
(b) Immediately upon, and at any time or from time to time after, the occurrence of an Event of Default, Sublandlord will have the unconditional right to draw on the LC at the LC Bank’s Manhattan offices located in New York, New York to the extent necessary: (i) to cure any default of Subtenant’s; (ii) to pay any other sum to which Sublandlord becomes obligated by reason of a Subtenant default; or (iii) to compensate Sublandlord for any monetary loss or damage which Sublandlord suffers thereby arising from a default by Subtenant. Upon the payment to Sublandlord of the proceeds of any draw or draws made by Sublandlord under the LC, together with any and all interest accruing thereon (collectively, “Draw Proceeds”), Sublandlord will hold the Draw Proceeds in its own name and for its own account, without liability for interest, to use and apply any and all of the Draw Proceeds: (i) to cure any default of Subtenant’s; (ii) to pay any other sum to which Sublandlord becomes obligated by reason of a Subtenant default; or (iii) to compensate Sublandlord for any monetary loss or damage which Sublandlord suffers thereby arising from a default by Subtenant. Among other things, it is expressly understood that the Draw Proceeds will not be considered an advance payment of Base Rent or Additional Rent, nor a measure of Sublandlord’s damages resulting from any default by Subtenant hereunder (past, present, or future). Further, immediately upon the occurrence and during the continuance of any Event of Default, Sublandlord may, from time to time and without prejudice to any other remedy, use the Draw Proceeds (whether from a contemporaneous or prior draw on the LC) to the extent necessary to make good any arrearages of Base Rent or Additional Rent, and/or to pay to Sublandlord any and all amounts to which Sublandlord is entitled in connection with the pursuit of any one or more of its remedies hereunder. Any delays in Sublandlord’s draw on the LC or in Sublandlord’s use of the Draw Proceeds as provided in this Section will not constitute a waiver by Sublandlord of any of its rights hereunder with respect to the LC or the Draw Proceeds. Within five (5) business days after the application of the Draw Proceeds, Subtenant will cause the LC to be replenished to its full amount thereunder. Sublandlord will not be liable for any indirect, consequential, special, or punitive damages incurred by Subtenant arising from a claim that Sublandlord violated the bankruptcy code’s automatic stay in connection with any draw by Sublandlord of any Draw Proceeds, Sublandlord’s liability (if any) under such circumstances being limited to the reimbursement of direct costs as and to the extent expressly provided in this Section. Nothing in this Sublease or in the LC will confer upon Subtenant any property rights or interests in any Draw Proceeds; provided, however, that within sixty (60) days after the natural expiration or earlier termination (not due to an Event of Default (defined hereafter)) of this Sublease, and after application of any proceeds towards any default by Subtenant hereunder, Sublandlord agrees to return any remaining unapplied balance of the Draw Proceeds then held by Sublandlord, and the LC itself (if and to the extent not previously drawn in full) to the Subtenant. Subtenant acknowledges that Sublandlord has the right to transfer its interest in this Sublease, and Subtenant agrees that in the event of any such transfer, Sublandlord shall have the right, at TenantSubtenant’s sole cost and expense, to transfer or assign the LC and/or the Draw Proceeds to the transferee. In such event, Subtenant shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease look solely to Landlord, with the Letter of Credit (defined below) or cash in the amount such transferee for return of the Security specified in Section 1.01(13) as security (“Security”) for LC and/or the full and faithful performance by Tenant of each and every termDraw Proceeds so transferred. Subtenant shall, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay of request by Sublandlord, execute such further instruments or deliver to Landlord in immediately available funds the sum assurances as Sublandlord may reasonably deem necessary to replace the amount used, applied evidence or retained. If Tenant has fully and faithfully performed and observed all of Tenantconfirm Sublandlord’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned transfer or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender assignment of the Premises by Tenant LC and/or Draw Proceeds to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsmortgagee.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
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Security. (a) TenantTo the extent requested by Indemnitee and approved by the Board of Directors, the Company may at Tenant’s sole cost any time and expense, shall from time to time provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease security to Landlord, with Indemnitee for the Letter of Credit (defined below) or cash in the amount obligations of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant Company hereunder through an irrevocable bank line of each and every termcredit, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings funded trust or other re-entry collateral or by Landlord) and other means. Any such security, once provided to Indemnitee, may not be revoked or released without the amount prior written consent of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderIndemnitee.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of a Potential Change in Control or Change in Control, the Company shall, upon written request by Indemnitee, create a trust for the benefit of the Indemnitee and from time to time upon written request of Indemnitee shall fund such trust in an amount sufficient to satisfy any saleand all Expenses reasonably anticipated at the time of each such request to be incurred in connection with investigating, lease preparing for and defending any Claim relating to an Indemnifiable Event, and any and all other Indemnifiable Amounts for all Claims relating to an Indemnifiable Event from time to time actually paid or transfer of Landlord’s interest claimed, reasonably anticipated or proposed to be paid. The amount or amounts to be deposited in the Building, Landlord shall have the right to transfer the Security, or balance thereof, trust pursuant to the vendeeforegoing funding obligation shall be determined by the Reviewing Party, transferee or lessee and in any such transfer shall release Landlord from all liability for the return case in which Independent Legal Counsel is involved. The terms of the Security. Tenant thereafter trust shall look solely to such vendee, transferee or lessee for provide that upon a Change in Control (i) the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord trust shall not be bound by any such assignmentrevoked or the principal thereof invaded without the written consent of Indemnitee, encumbrance(ii) the trustee shall advance, attempted assignment or attempted encumbrancesubject to and in accordance with Section 2(a), and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant Expenses to Indemnitee (and Indemnitee hereby agrees to reimburse the trust under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely circumstances under which Indemnitee would be required to perform any obligation reimburse the Company under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”Section 2(b)), naming Landlord as beneficiary(iii) the trust shall continue to be funded by the Company in accordance with the funding obligation set forth above, in an amount equal (iv) the trustee shall promptly pay to $1,084,479.58 and, prior Indemnitee all amounts for which Indemnitee shall be entitled to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (indemnification pursuant to this SectionAgreement or otherwise and (v) substitute Letter of Credit or amendment all unexpended funds in such trust shall revert to the existing Letter Company upon a final determination by the Reviewing Party or a court of Credit in such appropriately reduced amount. Notwithstanding anything to the contrarycompetent jurisdiction, Landlord hereby approves of Comerica Bank as the Bank. Landlord agreescase may be, in that Indemnitee has been fully indemnified under the instance terms of such substitute Letter of Credit, this Agreement for all Claims relating to surrender the replaced Letter of Credit promptly after receipt of the substituteIndemnifiable Events. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit trustee shall be freely transferable chosen by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transfereeIndemnitee. The Letter Company shall pay all costs of Credit shall be in establishing and maintaining the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”trust, and shall be extendedindemnify the trustee against any and all expenses (including attorneys’ fees), reissued claims, liabilities and damages arising out of or replaced by Tenant, relating to this Agreement or the establishment or maintenance of the trust. Nothing in each case at least thirty (30) days prior to this Section 4 shall relieve the Company of any of its expiration obligations under this Agreement. All income earned on the assets held in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder trust shall be in full force reported as income by the Company for federal, state, local and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditforeign tax purposes.
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Sources: Indemnification Agreement (Health Net Inc), Indemnification Agreement (Health Net Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease Tenant has delivered to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: either (i) the Termination Date; sum of $l,326,000.00, in certified or official bank check (the “Security Deposit”), or (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable in the amount of $1,326,000.00 in a form and payable at the office of issued by a major national bank satisfactory to Landlord in its reasonable Landlord’s sole and absolute discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute”). The Letter of Credit shall provide: provide that it is assignable by Landlord without charge and shall either (iA) that expire on the date which is 60 days after the expiration or earlier termination of this Lease (the “LC Date”) or (B) be automatically self-renewing until the LC Date unless the issuing bank provides Landlord may make partial and multiple draws thereunder, up at least 30 days prior written notice of non-renewal. If any Letter of Credit is not renewed at least 30 days prior to the face amount expiration thereof, and that Landlord may draw upon the Letter of Credit up and hold the proceeds thereof as security for the performance of Tenant’s obligations under this Lease. Landlord may draw on the Security Deposit or Letter of Credit (or the proceeds thereof) to the full amount thereof, as determined remedy defaults by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, Tenant in the event of assignment payment or other transfer of either Landlord’s interest in this Lease or performance of any interest in of Tenant’s obligations under this Lease. If Landlord (including, without limitation, consolidations, mergers, reorganizations shall have so drawn upon the Security Deposit or other entity changes), the Letter of Credit (or the proceeds thereof), Tenant shall be freely transferable upon demand deposit with Landlord a sum equal to the amount so drawn by Landlord, without charge .
(b) Provided Tenant is not in default under this Lease and without recourse, to Tenant has surrendered the assignee or transferee of such interest and the Bank shall confirm the same Premises to Landlord and such assignee in the condition required by the provisions of this Lease: (i) Landlord shall return to Tenant the Security Deposit or transferee. The Letter of Credit (or the proceeds thereof) then held by Landlord or (ii) if Landlord shall be in the form attached as Exhibit G hereto. The have drawn upon such Security Deposit or Letter of Credit amount required (or the proceeds thereof) to be maintained hereunder shall be increased proportionately for remedy defaults by Tenant in the payment or performance of any space leased to Tenant pursuant to the Offer Right. of Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant obligations under this Lease, and in addition Landlord shall entitle Landlord return to draw upon the Letter Tenant that portion, if any, of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use such Security Deposit or the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit remaining in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) yearpossession and, in either such case, such return shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least made within thirty (30) days prior after all defaults have been fully cured and Tenant shall have so surrendered the Premises.
(c) (i) Notwithstanding anything to its expiration the contrary contained in Section 2.09(a) and Section 2.09(b), but subject to the provisions of this Section 2.09(c), if, at any time after the 1st anniversary of Base Space Rent Commencement Date, Tenant has timely paid all rent required to be paid hereunder for a manner that fully complies with period of twelve consecutive months (the “Rent Period”), then Tenant shall be entitled to request, by written notice (a “Security Reduction Notice”) to Landlord satisfying all of the requirements of this Article FiveSection 2.09(c)(ii), so that in all events the Security Deposit or the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return reduced to an amount equal to three months of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right then escalated Fixed Rent payable pursuant to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditLease.
Appears in 1 contract
Security. (a) TenantTenant shall, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s upon execution and delivery of this Lease to Landlordlease, deposit with Landlord the Letter sum of Credit ONE HUNDRED THIRTEEN THOUSAND TWO HUNDRED SEVENTY-ONE and 34/100 (defined below$113,271.34) or cash in the amount of the Security specified in Section 1.01(13) as DOLLARS security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Leaselease and provided that Tenant is not then in default under the terms of this lease on the fifth (5th) anniversary of the Commencement Date then in such event, Tenant shall be entitled to a return of SEVENTY-FIVE THOUSAND FIVE HUNDRED FOURTEEN and 23/200 ($75,514.23) DOLLARS of the security. If It is also agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or rent and additional rent, and fails to cure the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)same within any applicable grace and/or notice periods, then then, Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be promptly returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the land and Building or transfer leasing of Landlord’s interest in the Building, of which the Demised Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security for any claims accruing from and after the Security. transfer date; and Tenant thereafter shall agrees to look to the new Landlord solely to such vendee, transferee or lessee for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In lieu of the cash security provided for in Article 34 hereof, and regardless of one or more assignments of this LeaseTenant may deliver to Landlord, Landlord may return the Security as security pursuant to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Lawsaid Article 34, now or hereafter enactedan irrevocable, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Fiveclean, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft "Evergreen" commercial letter of credit issued, presentable and payable at in the office amount of a major national bank satisfactory to Landlord in its reasonable discretion $113,271.34 (the “Bank”"Letter"), naming Landlord as beneficiary, issued by a bank which is authorized by the State of New York to conduct banking business in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while New York State and is a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt member of the substitute. The Letter of Credit New York Clearing House Association, which shall provide: permit Landlord (ia) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit thereon up to the full amount thereof, as determined by Landlord, and of the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, credit evidenced thereby in the event of assignment any default by Tenant in the terms, provisions, covenants or other transfer conditions of either Landlord’s interest in this Lease or of (b) to draw the full amount thereof to be held as cash security pursuant to Article 34 hereof if for any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), reason the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount is not renewed within twenty sixty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (3060) days prior to its expiration date. The Letter (and each renewal thereof) shall (i) be for a term of not less than one (1) year (except that the last Letter shall be for a term expiring sixty (60) days after the Expiration Date), (ii) expressly provide for the issuing bank to notify Landlord in writing not less than sixty (60) days prior to its expiration as to its renewal or non-renewal, as the case may be, and (iii) if not -11- 13 so renewed each year (or later period of expiration) shall be immediately available for Landlord to draw up to the full amount of such credit (to be held as cash security pursuant to said Article 34). Not less than forty-five (45) days prior to the expiration date of each Letter (and every renewal thereof), Tenant shall deliver to Landlord a manner renewal or new Letter subject to all of the conditions aforesaid, all to the intent and purposes, that fully complies a Letter in the sum of $113,271.34 shall be in effect during the first five (5) years of the term of this lease and provided that Tenant is not then in default under the terms of this lease, that a Letter in the sum of $37,757.08 shall be in effect for the remainder of the term of this lease. Failure by Tenant to comply with the requirements provisions of this Article Five, so that in all events the Letter of Credit required hereunder shall be deemed a material default hereunder entitling Landlord to exercise any and all remedies as provided in full force and effect continuously until this Lease for default in the date (the “L/C Expiration Date”) for return payment of the Security described in Subsection (a) above. No more often than once per yearfixed rent and, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit draw on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in existing Letter up to its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditfull amount.
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Sources: Office Lease (PLD Telekom Inc)
Security. (a) This Article Five is subject to Section 2.3 of Rider 2. Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the “Letter of Credit Credit” (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), beyond any applicable notice and cure period, then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry reentry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages damages, that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 11.02(b) or (c) of this LeaseLease or California Civil Code Section 1951.2 or 1951.4 (and any supplements, amendments, replacements and substitutions thereof and therefor from time to time). If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten five (105) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty ninety (6090) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security Security, whether in the form of cash, Letter of Credit and/or Letter of Credit Proceeds (defined below), shall not be deemed an advance Rent rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article FiveSection) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, it and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of LawSection 1950.7 of the California Civil Code, and any and all rights of Tenant under all provisions of law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the San Francisco, San Francisco Peninsula or San ▇▇▇▇ office of a major national bank satisfactory to Landlord in its reasonable sole discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to One Hundred Fifty Thousand and 00/100 Dollars ($1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute150,000.00). The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G E hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.Tenant
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, Tenant shall provide Landlord, simultaneously concurrently with TenantT▇▇▇▇▇’s execution and delivery of this Lease to Landlord, deposit with the Letter of Credit (defined below) or cash in the amount of Landlord the Security specified in Deposit required by Section 1.01(131.1(n) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the terms, provisions, covenants and conditions of this Lease or any other document executed to be performed by Tenant in connection with this Lease, including, but not limited to, T▇▇▇▇▇ during the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Term. The Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performDeposit is not, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but may not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises construed by Tenant to Landlord in accordance with this Lease; or (iv) the date constitute, Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security last month or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount portion thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) use, apply or retain all or any portion thereof in any manner Landlord is permitted to use part of the Security under Deposit for the payment of any Rent or any other sum in default, or for the payment of any other amount, loss or damage which Landlord may spend, incur or suffer by reason of Tenants default. If any portion of the Security Deposit is so used or applied, Tenant shall, within ten (10) days after demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on the Security Deposit. If Tenant shall fully perform every provision of this Article Five. In Lease to be performed by it, the event Landlord draws upon the Letter of Credit and elects not Security Deposit or any balance thereof shall be returned to terminate the Lease, but to use the Letter of Credit Proceeds, then Tenant within ten (10) business days after Landlord gives Tenant written notice specifying following the amount expiration of the Letter of Credit Proceeds so utilized by LandlordLease Term, Tenant shall immediately deliver to provided that Landlord an amendment to may retain the Letter of Credit or a replacement Letter of Credit in an Security Deposit until such time as any amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by due from Tenant under this LeaseLease has been determined and paid in full. The Letter Tenant hereby waives the provisions of Credit shall have an initial term Section 1950.7 of no longer than one (1) yearthe California Civil Code and all other provisions of law, shall be “evergreen”now or hereafter in effect, and shall be extendedwhich provide that a landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, reissued to repair damage caused by Tenant or replaced by Tenantto clean the premises, it being agreed that Landlord may, in each case at least thirty (30) days prior addition, claim those sums specified in this Section 27.1 and/or those sums reasonably necessary to its expiration compensate Landlord for any other loss or damage, foreseeable or unforeseeable, caused by the acts or omissions of Tenant or any Tenant Parties. Notwithstanding anything to the contrary in a manner that fully complies this Lease, if Tenant is not in default with the requirements respect to any provisions of this Article FiveLease during Lease Term, so that in all events including, but not limited to, the Letter provisions relating to the payment of Credit required hereunder Rent, then (i) Landlord shall be in full force apply a portion of the Security Deposit to Rent then due and effect continuously until the date owing by Tenant (the “L/C Expiration DateDeposit Credit”) for return of and the Security described in Subsection (a) aboveDeposit shall be deemed to be reduced by the Deposit Credit. No more often than once per yearThe Deposit Credit shall be equal to the following amounts: Rent payment month 13- $15,260.00, Landlord shall have rent payment month 25- $15,260.00, rent payment month 37- $16,213.75 and rent payment month 49- $16,213.75. For the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter avoidance of Credit on the same terms and conditions set forth in this Article Fivedoubt, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from forgoing, after Landlord applies the issuer that it intends Deposit Credit to withdraw or not extend Tenant’s Rent, the Letter of Security Deposit shall be deemed to be the original amount identified in Section 1.1(n) less the Deposit Credit prior received and neither Landlord nor Tenant shall have any obligation to restore the Security Deposit to the amount identified in Section 1.1(n) for any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditreason whatsoever.
Appears in 1 contract
Security. Tenant has deposited with landlord the sum of Ten -------- Thousand an No/100 Dollars (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13$10,000.00) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If It is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any such Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss damages of future Rent and any damage or deficiency in the reletting of the Premises (Leased Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry reentry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal end of Tenant from the Premises; (iii) the surrender this Lease and after delivery of entire possession of the Leased Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer a sale of Landlord’s interest in the BuildingLeased Premises, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee vendee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Please Initial: -------------- Landlord: [SIGNATURE ILLEGIBLE] --------------------- Tenant: [SIGNATURE ILLEGIBLE] --------------------- In the event Landlord uses, and regardless applies, or retains the whole or any part of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to deposited with Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Securityaccordance with this Section 15.21, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contraryshall, Landlord hereby approves of Comerica Bank as the Bank. Landlord agreeson demand, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents sum so used, applied or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit retained which shall be freely transferable by Landlord, without charge and without recourse, added to the assignee or transferee of such interest and the Bank shall confirm security deposit so that the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior replenished to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditformer amount.
Appears in 1 contract
Sources: Lease Agreement (Tamboril Cigar Co)
Security. (a) 4.4.1 Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously contemporaneously with Tenant’s its execution and delivery of this Lease and in addition to Landlordany advanced or prepaid Minimum Rent, has deposited with the Letter of Credit (defined below) or cash in the amount of Landlord the Security specified as provided in Section 1.01(13) 1, receipt of which is hereby acknowledged by Landlord. The Security will be held by Landlord as security (“Security”) for the full and faithful performance by Tenant of each and every termall of the terms, provision, covenantcovenants, and condition conditions of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) at any of time during the terms, provisions, covenants and conditions term of this Lease or any other document executed by Tenant is in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant Default (excluding normal wear and tearas defined in Article 16), then Landlord may use, apply, apply or retain the whole all or any part of the Security for the payment of (a) any Minimum Rent, Additional Rent or other sums payable by Tenant to Landlord hereunder which Tenant was obligated to pay but did not paid when duepay; (b) any sum expended by Landlord on Tenant’s behalf in accordance with the provisions of this Lease, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or (c) any other sum which Landlord may expend or may be required to expend by reason as a result of Tenant’s failure to performDefault, and otherwise for compensation of Landlord for including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (whether such lossLeased Premises. The use, damages application or deficiency accrue before retention of the Security will not prevent Landlord from exercising any other right or after summary proceedings remedy provided for under this Lease or at law and will not limit any recovery to which Landlord may otherwise be entitled.
4.4.2 The Security will bear no interest. Landlord is entitled to commingle the Security with other funds of Landlord.
4.4.3 Should the entire Security, or any portion thereof, be appropriated and applied by Landlord for the payment of overdue Minimum Rent, Additional Rent or other re-entry sums due and payable to Landlord by Tenant hereunder, then Tenant will, upon the written demand or Landlord) and , forthwith remit a sufficient amount in cash to restore the amount of Security to the unpaid past Rent, future Rent lossoriginal sum deposited, and all other losses, costs and damages that Landlord would be entitled Tenant’s failure to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord do so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after receipt of such demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. will constitute a Default under this Lease.
4.4.4 If Tenant has fully and faithfully performed and observed complies with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, then the Security (except Security, or any amount retained for application by Landlord as provided herein) shall balance of it remaining, will be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: Expiration Date or within thirty (i30) days after any later date on which Tenant vacates the Termination Date; (ii) the removal of Tenant from the Leased Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event absence of evidence satisfactory to Landlord of any sale, lease or transfer assignment of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber receive the Security or any interest in the remaining balance of it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without Tenant, regardless of one or more assignments of Tenant’s interest in the Security. In such event, upon return of the Security (or balance of it) to the original Tenant, Landlord will be completely relieved of liability with respect to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsSecurity.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in 4.4.5 In the event of assignment or other a transfer of either Landlord’s interest in this Lease or of any interest in the Leased Premises, Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), will have the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, right to transfer the Security to the assignee or transferee of Landlord’s interest. In such interest and the Bank shall confirm the same to event, Landlord and such assignee or transferee. The Letter of Credit shall will be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default deemed released by Tenant under this Lease, and in addition shall entitle Landlord to draw upon from all liability for the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described and Tenant agrees to look solely to the transferee for the return of the Security.
4.4.6 The Security will not be mortgaged, assigned, pledged, hypothecated or encumbered in Subsection (a) aboveany way by Tenant. No more often than once per year, action of Landlord shall have in enforcing its rights with respect to a Default will be deemed to be a termination of this Lease so that Tenant will be entitled to the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer return of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditSecurity.
Appears in 1 contract
Sources: Lease (Suncoast Bancorp Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as As security (“Security”) for the full and faithful timely payment and performance by Tenant of each and every termall Obligations, provision, covenantthe Borrower shall, and condition of this Lease. If Tenant fails timely shall cause all other Loan Parties to, on or before the Closing Date, do or cause to perform (within applicable notice and cure periods) any be done all things reasonably necessary in the opinion of the terms, provisions, covenants Lender and conditions its counsel to grant to the Lender for the benefit of this Lease the Secured Parties a duly perfected first priority security interest in all Collateral subject to no prior Lien or any other document executed by Tenant in connection with this Lease, including, but not limited toencumbrance except as expressly permitted hereunder. Without limiting the foregoing, the payment of Rent or the repair of damage Borrower shall deliver, and shall cause each Guarantor to deliver, to the Premises caused by Tenant Lender, in form and substance reasonably acceptable to the Lender, (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency a) in the reletting of the Premises (whether event such lossGuarantor has rights in any Pledged Equity Interests, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; Pledge Agreement which shall pledge the Pledged Equity Interests to the Lender for the benefit of the Secured Parties, (ii) if such Pledged Equity Interests are in the removal form of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord certificated securities, such certificated securities, together with undated stock powers or other appropriate transfer documents endorsed in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Providedblank pertaining thereto, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The the Security shall not be deemed an advance Rent deposit or an advance payment Agreement, (c) Uniform Commercial Code financing statements in form, substance and number as requested by the Lender, reflecting the Lien in favor of any kindthe Secured Parties on the Collateral, (d) documents in form, substance and number as requested by the Lender for filing with the Federal Patent and Trademark Office, the Federal Copyright Office, or a measure such other places as requested by the Lender, reflecting the Lien in favor of Landlord’s damages with respect the Secured Parties in the Intellectual Property, and (e) Qualifying Control Agreements (as defined in the Security Agreement) as provided in the Security Agreement. In addition, and without limiting the foregoing, the Borrower shall take and cause the Guarantors to Tenant’s failure take such further action, and deliver or cause to performbe delivered such further documents, nor as required by the Security Instruments or otherwise as the Lender may reasonably request to create, prefect and maintain the effectiveness and priority of the Liens contemplated by this Article IIA and each of the Security Instruments. The Borrower shall any action also, and shall cause each Subsidiary to also, pledge to the Lender for the benefit of the Secured Parties all of the Pledged Equity Interests acquired or inaction of Landlord with respect to it created on or its use or application be a waiver ofafter the Closing Date, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound otherwise acquired by any such assignment, encumbrance, attempted assignment or attempted encumbranceSubsidiary and not theretofore pledged to the Lender for the benefit of the Secured Parties, and regardless of one or more assignments of this Lease, Landlord may return the Security to deliver to the original Tenant without liability to any assignee. Tenant hereby waives any and Lender all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial documents and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, instruments in connection therewith as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount are required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter terms of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, Section 6.12 and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditInstruments.
Appears in 1 contract
Sources: Credit Agreement (TRX Inc/Ga)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of The Tenant has this Lease to Landlord, day deposited with the Letter Landlord the sum of Credit (defined below) or cash in $5,635.00 as security for the amount payment of the Security specified in Section 1.01(13) as security (“Security”) for rent hereunder and the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, on the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for Tenant to be performed. Said sum shall be returned to the payment Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has full and faithfully performed all such covenants and conditions and is not in arrears in rent. During the term hereof, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any Rent not paid when duedefault by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to said premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgages. The Landlord shall assign or transfer said security, for the cost benefit of repairing such damagethe Tenant, to any subsequent owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performrepayment thereof as herein provided, and otherwise for compensation of the assignor shall be deemed to be released by the Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in title and shall in no wise be deemed to permit the Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in retain the reletting security after termination of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount 's ownership of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Leasereversion or title. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on mortgage, encumber or assign said security without the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return written consent of the SecurityLandlord. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. 31st The Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return month's rent on signing of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditlease.
Appears in 1 contract
Security. (a) TenantIn order to secure the prompt and complete payment by the Obligor when due of all Obligations, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) Obligor hereby grants to the removal of Tenant from Collateral Agent, for the Premises; (iii) the surrender benefit of the Premises Bank, the LOC Provider, TOB Liquidity Provider and TOB Placement and Remarketing Agent, a first priority perfected, secured lien on, and assigns to the Collateral Agent, for the benefit of the Bank, the LOC Provider, TOB Liquidity Provider and TOB Placement and Remarketing Agent, all right, title and interest of the Obligor in and to all Collateral and all proceeds thereof, including all certificates or instruments representing or evidencing such Collateral, and all principal, interest and payments and distributions of cash or other property and proceeds from time to time received, receivable or otherwise distributed in respect of, or in exchange therefor (whether such proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by Tenant or against the Obligor) and all powers and rights of the Obligor now or hereafter acquired by the Obligor, including rights of enforcement, with respect to Landlord all Eligible Bonds, all Collateral Bonds, all Collateral Unenhanced Custody Receipts, all TOB Residuals and all Pledged Notes. In addition, the Pledged Notes executed by the Property Owners of the Recorded Second Lien Properties will be secured by a Recorded Second Lien Mortgage on the fee simple interest in accordance with this Lease; or (iv) each of the date Rent Adjustments owed pursuant to this Lease have been computed Recorded Second Lien Properties, and the Pledged Notes executed by Landlord and paid the Property Owners of the Unrecorded Second Lien Properties will be secured by Tenant. Provided, however, an Additional Second Lien Mortgage on the fee simple interest in no event shall any such return be construed as an admission by Landlord that Tenant has performed all each of its obligations hereunderthe Additional Second Lien Properties.
(b) The Security shall not market value of each Eligible Bond as of the date of this Agreement, as determined by the Bank, is set forth on Schedule I attached to this Agreement. Each Eligible Bond will be deemed an advance Rent deposit or an advance payment marked to market by the Bank after the date hereof on a daily basis. If at any time after the date hereof and prior to the termination of this Agreement the market value of any kindEligible Bond (as determined by the Bank in its sole discretion) drops below the applicable Trigger Price, the Obligor must either deliver to the Collateral Agent Additional Eligible Collateral or a measure reduce the aggregate outstanding balance of Landlord’s damages with respect the Bridge Loan or of Eligible Bonds secured by Letters of Credit and the aggregate maximum amount to Tenant’s failure be drawn under the TOB Liquidity Facilities, as applicable, in an amount satisfactory to perform, nor shall any action or inaction of Landlord with respect to it or the Bank in its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitysole discretion. In addition to other remedies available to the event LOC Provider and the TOB Liquidity Provider, each of any sale, lease or transfer of Landlord’s interest in the Building, Landlord them shall have the right to transfer cause the Securitymandatory tender of the Enhanced Custody Receipts and the TOB Floaters, or balance thereofrespectively, if the Obligor fails to satisfy the requirements of this paragraph. The market value of each Eligible Bond after the date hereof will be determined by the Bank by reference to the vendeeMunicipal Market Data index plus 2.00%, transferee or lessee and determined without penalty for real estate performance. The Bank shall notify the Obligor of any such transfer shall release Landlord from all liability change of methodology used for determining the return market value of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsEligible Bonds.
(c) If Tenant fails timely The Obligor will not give any consents, approvals, ratifications or waivers with respect to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to Collateral or requirement of any further notice or cure period under take any other Article actions with respect to the Collateral permitted by the provisions of this Lease, except such notice and cure period expressly provided under this Article Fivethe Bond Documents or the TOB Documents without the prior written consent of the Bank.
(d) As used hereinOn or prior to the date hereof, “Letter the Obligor will deliver to the Collateral Agent all Collateral required to be delivered as a condition to the issuance and delivery of Credit” shall mean an unconditionalthe Bridge Loan or the Letters of Credit and the TOB Liquidity Facilities, irrevocable sight draft letter as applicable. In conjunction with the delivery of credit issued, presentable and payable each item of Collateral at the office time required by this Agreement, the Obligor will direct each Bond Trustee, Underlying Custodian, TOB Trustee and Property Owner that is the maker of a major national bank satisfactory Pledged Note to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up register on its books the lien of the Collateral Agent with respect to the face amount thereofEligible Bonds (if the Obligor borrows the Bridge Loan), the Collateral Bonds, the Collateral Unenhanced Custodial Receipts, the TOB Residuals and the Pledged Notes, as applicable, (ii) send to the Collateral Agent and the Bank copies of all distribution reports and other reports (if any) sent to holders of such Eligible Bonds, Collateral Bonds, Collateral Unenhanced Custodial Receipts, TOB Residuals or Pledged Notes, as applicable, and that Landlord may draw upon (iii) make all payments or distributions in respect of the Letter of Credit up Eligible Bonds (if the Obligor borrows the Bridge Loan), Collateral Bonds, Collateral Unenhanced Custodial Receipts, TOB Residuals and Pledged Notes directly to the full amount thereofCollateral Agent. Prior to an Event of Default or Additional Termination Event, as determined the Collateral Agent shall remit to the Obligor at the account specified on Schedule VI hereto any payment or distribution received by Landlordthe Collateral Agent from the TOB Trustee, Underlying Custodian, Bond Trustee or Property Owner issuer of a Pledged Note in respect of the Eligible Bonds, Collateral Bonds, Collateral Unenhanced Custody Receipts, TOB Residuals or Pledged Notes upon receipt thereof by the Collateral Agent. At any time after the occurrence of an Event of Default or Additional Termination Event, any such payments or distributions on the Eligible Bonds, the Collateral Bonds, Collateral Unenhanced Custody Receipts, Eligible Bond Collateral, TOB Residuals or Pledged Notes shall (A) constitute “Collateral,” (B) be subject to the lien of the Collateral Agent hereunder, and (C) be retained by the Collateral Agent on behalf of the Bank, the LOC Provider, the TOB Liquidity Provider, and the Bank will pay to Landlord TOB Placement and Remarketing Agent in satisfaction of any outstanding Obligations. At any time after the amount occurrence of such draw upon receipt by an Event of Default or Additional Termination Event, the Bank of a sight draft signed by Landlord without requirement Collateral Agent shall present for payment any additional documents or statements by Landlord; and (ii) thatEligible Bonds, in the event of assignment TOB Residual, Collateral Unenhanced Custody Receipt, Collateral Bond, Pledged Note or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall Collateral that must be freely transferable by Landlord, without charge and without recourse, presented for payment to the assignee TOB Trustee, Underlying Custodian, Bond Trustee or transferee of issuer thereof, or its agent, as applicable, and apply such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant proceeds pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditIX hereof.
Appears in 1 contract
Sources: Shortfall, Fee and Collateral Agreement (America First Tax Exempt Investors Lp)
Security. A. On or before the date that is three days after Sublessor notifies Sublessee that Sublessor has received the Consent to Sublease, Sublessee shall deposit and shall thereafter maintain at all times with Sublessor until the date that is thirty (a30) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with days after the Letter of Credit (defined below) or cash in the amount expiration of the Security specified in Section 1.01(13) Term, as a security deposit (“the "Security”") for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any Sublessee of the covenants, agreements, terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited toSublease, the payment sum of Rent or Three Thousand Eight Hundred Thirty Three and 34/100 Dollars ($3,833.34).
B. It is agreed that in the repair event Sublessee defaults in respect of damage to any of the Premises caused by Tenant covenants, agreements, terms, provisions and conditions of this Sublease (excluding normal wear after notice and tearthe expiration of any applicable grace period), then Landlord Sublessor may use, apply, apply or retain the whole or any such part of the Security as shall be equal to the sum as to which Sublessee is in default or for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord Sublessor may expend or may be required to expend by reason of Tenant’s failure to performSublessee's default in respect of any of the covenants, agreements, terms, provisions and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Sublease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Subleased Premises, whether such loss, damages or deficiency accrue occurred before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past RentSublessor. Sublessor shall not be required to so use, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies apply or retains all or retain any part of the Security, Tenant but if any part thereof is so used, applied or retained in accordance with the provisions of this Section, Sublessee shall, upon demand, immediately deposit with Sublessor an amount equal to the amount so used, applied or retained.
C. In the event that Sublessee shall fully and faithfully comply with all of the terms, provisions, covenants, agreements and conditions of this Sublease, any unapplied Security shall be returned to Sublessee within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal end of Tenant from the Premises; (iii) the surrender this Sublease and after delivery of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return entire possession of the Security. Tenant thereafter shall look solely Subleased Premises to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsSublessor.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. Tenant has deposited with Landlord a sum of money (aby check, subject to collection) Tenantequal to $26,875.00, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Leaselease. If Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, including but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when duerent and additional rent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Tenant is in default, or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal Expiration Date and after delivery of Tenant from the Premises; (iii) the surrender possession of the entire Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. If Landlord applies or retains any part of the security so deposited, Tenant, upon demand, shall deposit with Landlord the amount so applied or retained, so that Landlord shall not be required to keep have the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in full deposit on hand at all times during the term of this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitylease. In the event of any salea sale of the Land and Building or condominium unit of which the Premises may be a part or leasing, lease conveyance or transfer of Landlord’s interest in the BuildingBuilding or condominium unit of which the Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, lessee or transferee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained security deposited hereunder shall be increased proportionately for any space leased placed in an interest bearing account. Interest earned by Landlord on the security deposit shall be distributed to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by annually provided that Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner default hereunder. Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount shall retain 1% of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord security deposit annually as an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditadministrative fee.
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously 4.01. Tenant has deposited with Tenant’s execution and delivery Landlord the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $363,515.63 as security (“Security”) for the full and faithful performance and observance by Tenant of each Tenant's covenants and every term, provision, covenant, and condition of obligations under this Lease. If Tenant fails timely to perform (within applicable defaults in the full and prompt payment and performance of any of Tenant's covenants and obligations under this Lease beyond notice and the expiration of any applicable cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Fixed Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Additional Charges, then Landlord may may, but shall not be required to, use, apply, apply or retain the whole or any part of the Security security so deposited and the interest accrued thereon, if any, to the extent required for the payment of any Fixed Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of and Additional Charges or any other sums as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) . If Landlord shall so use, apply or retain the whole or any part of the security or the interest accrued thereon, if any, Tenant shall upon demand immediately deposit with Landlord a sum equal to the amount so used, applied or retained, as security as aforesaid failing which Landlord shall have the same rights and remedies as for the non-payment of Fixed Rent beyond the applicable grace period.
4.02. In lieu of the cash security deposit provided for in Section 4.01 hereof, Tenant may at any time during the term hereof deliver to Landlord and, shall, except as otherwise provided herein, maintain in effect at all times during the term hereof, an irrevocable letter of credit, substantially in the form annexed hereto as Exhibit G and otherwise reasonably satisfactory to Landlord in the amount of the unpaid past Rentsecurity required pursuant to this Lease issued by a banking corporation reasonably satisfactory to Landlord and having its principal place of business or a duly licensed branch or agency in the City and State of New York. Such letter of credit shall have an expiration date no earlier than the first anniversary of the date of issuance thereof and shall be automatically renewed from year to year unless terminated by the issuer thereof by notice to Landlord given not less than 45 days prior to the expiration thereof. Except as otherwise provided herein, future Rent lossTenant shall, throughout the term of this Lease deliver to Landlord, in the event of the termination of any such letter of credit, replacement letters of credit in lieu thereof (each such letter of credit and such extensions or replacements thereof, as the case may be, is hereinafter referred to as a "Security Letter") no later than 30 days prior to the expiration date of the preceding Security Letter. The term of each such Security Letter shall be not less than one year, shall be automatically renewable from year to year as aforesaid, and all other lossesshall not be subject to a final expiration date. Notwithstanding the foregoing, costs in the event that (x) Landlord shall elect, in its discretion, to accept a Security Letter which is subject to a final expiration date, and damages that (y) the Expiration Date of this Lease shall be determined pursuant to Section 1.03 hereof to be a date occurring after the date which is one (1) month prior to such final expiration date, Tenant shall, in such event, within ninety (90) days after the Commencement Date (as determined pursuant to Section 1.05 hereof), deliver to Landlord would be entitled a replacement of or an amendment to recover if Landlord were such Security Letter extending such final expiration date to pursue recovery under Section 11.02 a date occurring at least one (1) month following the Expiration Date of this Lease. If Landlord so uses, applies Tenant shall fall to obtain any replacement of or retains all or part amendment to a Security Letter within any of the Securityapplicable time limits set forth in this Section 4.02, Landlord may draw down the full amount of the existing Security Letter and retain the same as security hereunder.
4.03. In the event Tenant shall within ten (10) business days after demand pay or deliver defaults in respect to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all any of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease beyond notice and the expiration of any applicable cure periods, including, but not limited to, the payment of Fixed Rent and Additional Charges, Landlord may, at its election, draw down the entire Security Letter or any portion thereof and use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any Fixed Rent and Additional Charges or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant's default in respect of any of the terms, provisions, covenants, and conditions of this Lease, including but not limited to, any damages or deficiency accrued before or after summary proceedings or other re-entry by Landlord. To insure that Landlord may utilize the security represented by the Security Letter in the manner, for the purpose, and to the extent provided in this Article 4, each Security Letter shall provide that the full amount thereof may be drawn down by Landlord upon the presentation to the issuing bank of Landlord's draft drawn on the issuing bank without accompanying memoranda on statement of beneficiary.
4.04. In the event that Tenant defaults in respect of any of the terms, provisions, covenants and conditions of the Lease beyond notice and the expiration of any applicable cure periods and Landlord utilizes all or any part of the security represented by the Security Letter but does not terminate this Lease as provided in Article 22 hereof, Landlord may, in addition to exercising its rights as provided in Section 4.03 hereof, retain the unapplied and unused balance of the principal amount of the Security Letter as security for the faithful performance and observance by ▇▇▇▇▇▇ thereafter of the terms, provisions, and conditions of this Lease, and may use, apply, or retain the whole or any part of said balance to the extent required for payment of Fixed Rent, Additional Charges, or any other sum as to which Tenant is in default or for any sum which Landlord may expend or be required to expend by reason of Tenant's default in respect of any of the terms, covenants, and conditions of this Lease. In the event Landlord applies or retains any portion or all of the security delivered hereunder, Tenant shall forthwith restore the amount so applied or retained so that at all times the amount deposited shall be not less than the security required by Section 4.01 hereof.
4.05. If Tenant shall fully and faithfully comply with all of Tenant's covenants and obligations under this Lease, the Security security or any balance thereof to which Tenant is entitled [together with the interest earned thereon (except less any amount retained for application by administrative fee to which Landlord as provided herein) may be entitled under applicable Legal Requirements), if and to the extent that such security is held in cash form] shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal end of Tenant from this Lease and after delivery to Landlord of entire possession of the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease transfer or transfer leasing of Landlord’s 's interest in the BuildingBuilding whether or not in connection with a sale, transfer or leasing of the Land to a vendee, transferee or lessee, Landlord shall have the right to transfer the Securityunapplied part of the security and the interest thereon, or balance thereofif any, to which Tenant is entitled, to the vendee, transferee or lessee and, upon the giving to Tenant of notice that the Building has been sold, transferred or leased (as the case may be) and any the actual transfer of the security to such transfer vendee, transferee or assignee (as the case may be), Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. or payment thereof, and Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the Securitysame. The provisions of the preceding sentence shall apply to every subsequent sale, transfer or leasing of the Building, and any successor of Landlord may, upon a sale, transfer, leasing or other cessation of the interest of such successors in the Building, whether in whole or in part, pay over any unapplied part of said security to any vendee, transferee or lessee of the Building and shall thereupon be relieved of all liability with respect thereto. In the event of any such sale, transfer or leasing, Landlord shall have the right to transfer the Security Letter to the new landlord or, in the alternative, to require Tenant to deliver a replacement Security Letter naming the new landlord as beneficiary, and, upon such delivery by Tenant of such replacement Security Letter, Landlord shall return the existing Security Letter to Tenant. If Tenant shall fail to timely deliver such replacement Security Letter, Landlord shall have the right to draw down the existing Security Letter and retain the proceeds as security hereunder until a replacement Security Letter is delivered. Landlord and ▇▇▇▇▇▇ hereby agree that, in connection with the transfer by ▇▇▇▇▇▇▇▇ or its successors or assigns hereunder of Landlord's interest in the Security Letter, Tenant shall be solely liable to pay any and all actual expenses of the issuing bank as billed to Landlord (other than the issuing bank's transfer commission) in connection with any such transfer of the Security Letter, as Additional Charges hereunder, upon ▇▇▇▇▇▇▇▇'s demand therefor. Except in connection with a permitted assignment of this Lease, Tenant shall not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security or any interest in itthereon to which Tenant is entitled, and neither Landlord nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In any event, and in the absence of evidence satisfactory to Landlord of an assignment of the right to receive the security, or the remaining balance thereof, ▇▇▇▇▇▇▇▇ may return the security to the original Tenant regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Simultaneously with Tenant’s the execution and delivery of this Lease lease, Tenant has, or shall have, deposited with Landlord the sum of $37,843,88, subject to Landlordcollection, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If At all times during this lease, Tenant fails timely shall have on deposit with Landlord pursuant to perform (within applicable notice and cure periods) this paragraph 45 not less than two months' fixed rent as security. It is agreed that in the event Tenant defaults in respect o any of the terms, provisionscovenants, covenants obligations, provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear basic rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of basic rent and additional rent or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings proceedings, or other judicial or quasi-judicial action or proceeding, or re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the lease and after delivery of entire possession of the Demised Premises by Tenant to the Landlord in accordance with this Lease; or (iv) their condition existing as of the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord Commencement Date, reasonable wear and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitytear excepted. In the event of any sale, lease sale of the land and Building or transfer leasing of Landlord’s interest in the Building, of which the Demised Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released from all liability for the return of such security; and it is agreed that the Securityprovisions hereof shall apply to every transfer or assignment made of the security to a new Landlord. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease. Landlord shall maintain such security deposit in an interest-bearing account for Tenant's account; however, Landlord may return shall be entitled to retain one percent thereof to offset Landlord's costs in administering the Security to same. In lieu of providing the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Securityaforesaid cash deposit, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant substitute a clean irrevocable letter of credit in form and substance acceptable to deliver Landlord drawn on a bank acceptable to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of Tenant has deposited the Security specified in Section 1.01(13) with Landlord as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If It is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)rent, then beyond any applicable notice and/or cure period, Landlord may use, apply, apply or retain the whole or any part of the Security to the extent required for the payment of any Rent not paid when due, rents as to which Tenant is in default beyond any applicable notice and/or cure period or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may reasonably expend or may reasonably be required to expend by reason of Tenant’s failure to perform's default beyond any applicable notice and/or cure period in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . To the amount of extent that Landlord, during the unpaid past Rentterm hereof, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or any part of the Security, Tenant shall shall, within ten (10) business days after demand pay or deliver restore the Security to Landlord in immediately available funds the sum necessary to replace the amount its original amount. The Security (less any portions thereof used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under as retained by Landlord in accordance with the terms, provisions, covenants and conditions provisions of this Lease, the Security (except any amount retained for application by Landlord as provided hereinArticle 5) shall be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: termination date (ior after such other date when the term may expire or be terminated, without the fault of Tenant, pursuant to the provisions of this Lease or pursuant to law) the Termination Date; (ii) the removal and after delivery of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant premises to Landlord in accordance with the provisions of this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale or transfer leasing of Landlord’s interest in the Land and Building, Landlord shall have the right to transfer the Security, or balance thereof, Security to the vendeevendee or lessee, transferee or lessee and any upon such transfer transfer, Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such Security, and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said Security. It is agreed that the provisions hereof shall apply to every such transfer or payment assignment made of the Security. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security or any interest in it, and that neither Landlord nor its successors and assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Qmed Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Sublessee has deposited with Tenant’s execution and delivery Sublessor the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $64,724 as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any Sublessee of the terms, provisions, covenants and conditions of this Lease or Sublease. It is agreed that in the event Sublessee defaults in respect of any other document executed by Tenant in connection with of the terms, covenants and conditions of this LeaseSublease, including, including but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear fixed rent and tear)additional rent, then Landlord may Sublessor may, but shall not be obligated to, use, apply, or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of fixed rent and additional rent or any other sum as to which Landlord Sublessee is in default or for any sum which Sublessor may expend or may be required to expend by reason of Tenant’s failure to performSublessee's default, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Subleased Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Sublessor. Sublessee shall, upon demand, deposit with Sublessor the full amount of so used, in order that Sublessor shall have the unpaid past Rent, future Rent loss, and full security deposit on hand at all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 times during the term of this LeaseSublease. If Landlord so uses, applies or retains all or part of In the Security, Tenant event that Sublessee shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days Sublessee after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Sublease and after the delivery of possession of the Subleased Premises by Tenant to Landlord Sublessor vacant, broom clean and otherwise in accordance with this the condition required hereunder and under the Prime Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any salea transfer or assignment of this Sublease by Sublessor, lease or transfer of Landlord’s interest in the Building, Landlord Sublessor shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee assignee and any such transfer Sublessor shall release Landlord thereupon be released by Sublessee from all liability for the return of such security; and it is agreed that the Security. Tenant thereafter provisions thereof shall look solely apply to such vendee, transferee every transfer or lessee for the return or payment assignment made of the Securitysecurity to a new Sublessor. Tenant shall Sublessee further covenants that it will not assign or encumber encumber, or attempt to assign or encumber the Security or any interest in itencumber, monies deposited herein as security, and Landlord that neither Sublessor nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Sublease (Princeton Video Image Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously 42.01. Tenant has deposited with Tenant’s execution and delivery Landlord the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $220,580.00 as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions, covenants and every term, provision, covenant, and condition conditions of this Lease. If ; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear fixed annual rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of fixed annual rent and additional rent or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, provisions, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the Land and Building or transfer leasing of Landlord’s interest in the Building, of which the demised premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. such security; and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new landlord for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In the event Landlord applies or retains any portion or all of the security deposited, and regardless Tenant shall forthwith restore the amount so applied or retained so that at all times the amount deposited shall be $220, 580.00.
42.02. In lieu of one or more assignments the cash security provided for in Section 42.01 hereof, Tenant may, at any time during the term of this Leaselease, deliver to Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Lawand, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Leaseshall, except such notice and cure period expressly as otherwise provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean maintain in effect at all times during the term hereof, an unconditional, irrevocable sight draft letter of credit issuedcredit, presentable in form and payable at the office of a major national bank substance satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (the security required pursuant to this Section) substitute Letter Article 42 issued by a banking corporation satisfactory to Landlord and having its principal place of Credit business or amendment its duly licensed branch or agency in the State of New York. Such letter of credit shall have an expiration date no earlier than the first anniversary of the date of issuance thereof and shall be automatically renewed from year to year unless terminated by the issuer thereof by notice to Landlord given not less than 45 days prior to the existing Letter expiration thereof. Except as otherwise provided in this Article 42, Tenant shall, throughout the term of Credit in such appropriately reduced amount. Notwithstanding anything this Lease deliver to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment the termination of any such letter of credit, replacement letters of credit in lieu thereof (each such letter of credit and such extensions or replacements thereof, as the case may be, is hereinafter referred to as a "Security Letter") no later than 45 days prior to the expiration date of the preceding Security Letter. The term of each such Security Letter shall be not less than one year and shall be automatically renewable from year to year as aforesaid. If Tenant shall fail to obtain any replacement of a Security Letter within the time limits set forth in this Section 42.02, Landlord may draw down the full amount of the existing Security Letter and retain the same as security hereunder.
42.03. In the event Tenant defaults in respect of any of the terms, provisions, covenants and conditions of this Lease, including, but not limited to, the payment of rent and additional rent, Landlord may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant's default in respect of any of the terms, provisions, covenants, and conditions of this Lease, including but not limited to, any damages or deficiency accrued before or after summary proceedings or other transfer of either re-entry by Landlord’s interest . To insure that Landlord may utilize the security represented by the Security Letter in the manner, for the purposes, and to the extent provided in this Lease or Article 42, each Security Letter shall provide that the full amount thereof may be drawn down by Landlord upon the presentation to the issuing bank of Landlord's sight draft drawn on the issuing bank.
42.04. In the event that Tenant defaults in respect of any interest of the terms, provisions, covenants and conditions of the Lease and Landlord utilizes all or any part of the security represented by the Security Letter but does not terminate this Lease as provided in Article 16 hereof, Landlord (includingmay, without limitationin addition to exercising its rights as provided in Section 42.03, consolidations, mergers, reorganizations or other entity changes), retain the unapplied and unused balance of the principal amount of the Security Letter of Credit shall be freely transferable by Landlord, without charge as security for the faithful performance and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default observance by Tenant under thereafter of the terms, provisions, and conditions of this Lease, and may use, apply, or retain the whole or any part of said balance to the extent required for payment of rent, additional rent, or any other sum as to which Tenant is in addition shall entitle Landlord to draw upon the Letter of Credit. default or for any sum which Landlord may (but shall not expend or be required to) draw upon to expend by reason of Tenant's default in respect of any of the Letter terms, covenants, and conditions of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article FiveLease. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount applies or retains any portion or all of the Letter of Credit Proceeds so utilized by Landlordsecurity delivered hereunder, Tenant shall immediately deliver forthwith restore the amount so applied or retained so that at all times the amount deposited shall be not less than the security required by Section 42.02.
42.05. In the event that Tenant shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this Lease, the security shall be returned to Tenant after the date fixed as the end of the Lease and after delivery of entire possession of the demised premises to Landlord. In the event of a sale of the Land and Building or leasing of the Building, of which the demised premises form a part, Landlord an amendment shall have the right to transfer any interest it may have in the Security Letter to the Letter of Credit vendee or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to lessee and Landlord within ten (10) business days after Landlord’s notice shall constitute a Default thereupon be released by Tenant under this Lease. The from all liability for the return of such Security Letter, provided such vendee or lessee assumes any responsibilities of Landlord with respect to such Security Letter and Tenant agrees to look solely to the new landlord for the return of Credit said Security Letter; and it is agreed that the provisions hereof shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued apply to every transfer or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return assignment made of the Security described in Subsection (a) aboveLetter to a new landlord. No more often than once per yearTenant further covenants that it will not assign or encumber or attempt to assign or encumber the monies deposited herein as security and that neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In the event of a sale of the Building Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Security Letter naming the new landlord as beneficiary and, if Tenant shall fail to timely deliver the same, to draw down the existing Security Letter and retain the proceeds as security hereunder until a replacement Security Letter is delivered.
42.06. For so long as Tenant shall fully and faithfully comply with all of Credit the terms, provisions, covenants and conditions of this lease, and shall have paid all installments of fixed annual rent and additional rent due hereunder within seven (7) days of the due date therefor, the security, as represented by the Security Letter, shall be reduced on the same terms third (3rd) and conditions set forth in this Article Five, in fifth (5th) anniversaries of the event that Landlord determines, in its good faith judgment, Commencement Date such that the issuing Bank is no longer satisfactory to remain remaining amount upon each such anniversary date shall be as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration follows: Amount ------ Third (3rd) Anniversary Date shall entitle the Landlord to immediately draw upon the Letter of Credit.$183,816.67 Fifth (5th) Anniversary Date $147,053.33
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s Upon execution and delivery of this Lease to LandlordLease, Tenant shall deposit with Landlord the Letter sum of Credit $10,270.00 (defined below) or cash in the amount of the Security specified in Section 1.01(13carried over) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely The depositing of said sum with the Landlord is a condition precedent to perform (within applicable notice and cure periods) any the valid execution of the termsLease. Landlord, provisionsat its option, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited for the payment of any Rent not paid when due, sum for the cost of repairing such damage, which Tenant is in default or for the cost of cleaning the Premises, for the payment of any other sum which Landlord Landlord, at its option, may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation 's default of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) terms and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 conditions of this Lease. If Any expenditures made by Landlord as herein stipulated shall be paid by Tenant as additional rent. Landlord shall be permitted to co-mingle Tenant security funds with other funds of Landlord and shall not be required to pay interest on any sum so uses, applies or retains all or part of held. In the Security, event that Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants terms and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) end of the removal of Tenant from the Premises; (iii) the surrender Lease and after delivery of the Premises by Tenant to Landlord in accordance with pursuant to the terms and conditions of this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer a sale of Landlord’s interest in the BuildingPremises, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee buyer and any such transfer Landlord shall release Landlord thereupon be relieved by Tenant from all liability for the return of such security and Tenant agrees to look to the Security. Tenant thereafter shall look buyer solely to such vendee, transferee or lessee for the return of said security. The provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new buyer. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither the Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
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Security. (a) TenantConcurrently with the date of this Lease, at Tenant shall deposit with Landlord Security for the performance of Tenant’s sole cost obligations under this Lease in the amount of Four Hundred Thousand Dollars ($400,000.00) in the form of either cash or Security Letter of Credit(defined below). From time to time throughout the Term, Tenant shall be permitted to substitute the forms of Security between cash and expensethe Security Letter of Credit upon at least five (5) days’ prior notice to Landlord.
a. If the Security is in the form of cash, Tenant shall provide Landlord, simultaneously deposit with Tenant’s execution Landlord the cash Security to be retained by Landlord as cash security for the faithful performance and delivery observance by Tenant of the provisions of this Lease. Tenant shall not be entitled to any interest whatsoever on the Security. Landlord shall have the right to commingle the Security with its other funds. Landlord may apply the whole or any part of the Security to any payment or amount due as a result of an existing Event of Default. Landlord’s application of the Security, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by law or in equity (it being intended that Landlord shall not first be required to proceed against the cash Security ) and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. If Landlord uses all or any portion of the Security as herein provided, within ten (10) days after written demand therefor, Tenant shall pay Landlord cash in amount equal to that portion of the Security used by Landlord. Subject to the condition that, during the first thirty-six (36) months of the Term, Tenant has not committed more than two (2) monetary Events of Default, Tenant shall have the right to reduce the Security to Thirty Thousand Dollars ($30,000.00) by written request for such reduction to Landlord. If an Event of Default is not then continuing under the Lease, with the cash Security (or any balance thereof) shall be returned or paid over to Tenant within thirty (30) days after the last to occur of (i) the date on which the Term has expired or is terminated, or (ii) delivery to Landlord of possession of the Premises.
b. If the Security is in the form of a Security Letter of Credit, Tenant shall deliver to Landlord the Security Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as hereinafter defined), representing security (“Security”) for the full and faithful performance and observance by Tenant of each Tenant’s covenants and every termobligations under this Lease (the Security Letter of Credit and the cash proceeds of which are referred to in this Lease as the “Security”).
i. If an Event of Event of Default is continuing, provisionLandlord may, covenant, and condition of without notice to Tenant (except for notices expressly provided for in this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may draw upon the Security Letter of Credit and use, apply, set off or retain the whole or any part of the Security Security, to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled sums due or to recover if Landlord were to pursue recovery become due from Tenant under Section 11.02 of this Lease, in addition to other remedies available to Landlord. If In the event Landlord shall so usesuse, applies apply or retains all retain the whole or any part of the Security, Tenant shall shall, within ten (10) business days after written demand pay or therefor, deliver to Landlord in immediately available funds the sum necessary cash equal to replace the amount so used, applied which cash shall be part of the Security. The drawing of the Security Letter of Credit and use, application or retainedretention of the Security, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by law or in equity (it being intended that Landlord shall not first be required to proceed against the Security) and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. If Tenant has fully and faithfully performed and observed all an Event of Tenant’s obligations Default is not then continuing under the terms, provisions, covenants and conditions of this Lease, the Security (except or any amount retained for application by Landlord as provided hereinbalance thereof) shall be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: last to occur of (i) the Termination Date; date on which the Term has expired or is terminated, or (ii) the removal delivery to Landlord of Tenant from possession of the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep may deliver the Security separate from its general funds Letter of Credit and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled Security to any interest on the Security. In the event of any sale, lease or transfer purchaser of Landlord’s interest in the BuildingPremises (or any successor landlord , Landlord shall have the right to transfer the Securityif applicable), or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return upon delivery of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the other Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit purchaser or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Successor Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right be discharged of and from any further liability with respect to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditsame.
Appears in 1 contract
Security. TENANT has deposited with LANDLORD the sum of EIGHT THOUSAND EIGHT HUNDRED EIGHTY FOUR AND 88/100 (a$8,884.88) TenantDOLLARS, at Tenant’s sole cost as security for the faithful performance and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount observance by TENANT of the Security specified in Section 1.01(13) as security (“Security”) for the full terms, provisions and faithful performance by Tenant of each and every term, provision, covenant, and condition conditions of this Lease; it is agreed that, in the event TENANT defaults in respect to any of the terms, provisions, and conditions of this Lease, including, but not limited to the payment of rent and additional rent, LANDLORD may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent or any other sum as to which TENANT is in default or for amy ▇▇▇ which LANDLORD may expend or may be required to expend by reason of TENANT'S default in respect to any of the terms, covenants and conditions of this Lease, including, but not limited to any damages or deficiency in the re-letting of the premises, whether such damage or deficiency accrued before or after summary proceedings or other re-entry by LANDLORD. If Tenant fails timely to perform (within applicable notice In the event that TENANT shall fully and cure periods) any faithfully comply with all of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days TENANT after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises Lease and after delivery of entire possession of the premises to LANDLORD. In the event of a sale of the land and Building, of which the premises form a part, LANDLORD shall have the right to transfer the security to the vendee, and LANDLORD shall thereupon be released by Tenant TENANT from all liability for the return of such security and TENANT agrees to Landlord in accordance with this Lease; look to the new LANDLORD solely for the return of said security. It is agreed that the provisions hereof shall apply to every transfer or (iv) assignment made of the date Rent Adjustments owed pursuant security to this Lease have been computed a new LANDLORD. TENANT further covenants that it will not assign or encumber the monies deposited herein as security and that neither LANDLORD nor its assigns shall be bound by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit assignment or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordencumbrance. Landlord LANDLORD shall not be required to keep the Security separate from its general security in a segregated account and the security may be commingled with other funds of LANDLORD, and in no event shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not TENANT be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositssecurity.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with As security for the Letter of Credit (defined below) or cash in the amount Payment of the Security specified in Section 1.01(13) as security (“Security”) for Rent hereunder and the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions on the part of this Lease or any other document executed by the Tenant to be performed, Tenant has deposited with the Landlord the total sum of THIRTEEN THOUSAND FOUR HUNDRED NINETY FIVE AND 00/100 ($13,495.00) DOLLARS in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting occupancy of the Premises (whether such loss“Security Deposit”). The Security Deposit shall be returned to the Tenant, damages or deficiency accrue before or without interest, after summary proceedings or other re-entry by Landlord) and the amount expiration of the unpaid past RentLease Term, future Rent loss, and all other losses, costs and damages provided that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, such covenants and conditions of this Leaseand is not in arrears in Rent. During the Lease Term, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any default by the Tenant, in which event the Tenant shall, on demand, promptly restore the Security (except Deposit to its original amount. If Landlord shall have transferred the Security Deposit to any amount retained new owner of the Property, liability to repay the Security Deposit to the Tenant shall run with the reversion and title to the Premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer the Security Deposit, for application by Landlord the benefit of the Tenant to any subsequent owner or holder of the reversion or title to the Premises, in which case the assignee shall become liable for the repayment of the Security Deposit as provided herein) herein provided, and the assignor shall be returned or paid over deemed to Tenant no later than sixty (60) days after be released by the latest of: (i) the Termination Date; (ii) the removal of Tenant from all liability to return the Premises; (iii) Security Deposit. This provision shall be applicable to every alienation or change in title and shall in no way be deemed to permit the surrender Landlord to retain the Security Deposit after termination of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action ownership of the reversion or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordtitle. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. The Tenant shall not be entitled mortgage, encumber or assign the Security Deposit without the written consent of the Landlord. Prior to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the BuildingSecurity Deposit, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return provide Tenant with written notice advising of the Security. Tenant thereafter shall look solely transfer of title to such vendee, transferee or lessee for Premises and the return or payment Security Deposit and advising of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, name and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt address of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expensesimultaneously herewith (but subject to the provisions of Section 1.5.6 hereof, shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery Landlord either the cash sum or a letter of this Lease to Landlord, with the Letter of Credit (defined below) or cash credit in the amount of the Security specified in Section 1.01(13) $511,816.56, as security (“Security”) for the full and faithful punctual performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the terms, provisions, covenants terms and conditions of this Lease or (such amount, together with any other document executed interest earned thereon, if any, such letter of credit, and/or any funds drawn by Tenant in connection with this Lease, including, but not limited toLandlord thereunder being herein called the "SECURITY DEPOSIT"). In respect thereof, the payment following provisions shall apply:
(a) If Tenant defaults hereunder beyond the expiration of Rent any applicable grace, notice or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)cure period, then Landlord may use, apply, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum sum(s) as to which Tenant is in default or for any sum(s) which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's 45 default pursuant hereto, and otherwise for compensation of Landlord for including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in with respect to the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue accruing before or after summary proceedings or other re-entry by Landlord) and . In the amount case of the unpaid past Rentevery such use, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies application or retains all or part of the Securityretention, Tenant shall within ten (10) business days after demand shall, on demand, pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or retained. retained such that the Security Deposit shall be replenished to its former amount.
(b) If Tenant has shall fully and faithfully performed and observed punctually comply with all of Tenant’s obligations under the terms, provisions, covenants terms and conditions of this Lease, then the Security Deposit (except any amount retained for application by Landlord as provided hereinor portion thereof to which Tenant is entitled) shall be returned or paid over to Tenant no later than sixty (60i) one half (1/2) within fifteen (15) days after the latest of: (i) the Termination Date; (ii) the removal expiration or termination of Tenant from the Premises; (iii) this Lease and the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or herewith (iv) provided, if the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. ProvidedSecurity Deposit is a letter of credit, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all theretofore given to Landlord a replacement letter of its obligations hereundercredit in the amount of the remaining one half (1/2) of the Security Deposit) and (ii) one half (1/2) within ninety (90) days after the expiration or termination of this Lease and the surrender of the Premises to Landlord in accordance herewith.
(bc) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, a sale or lease of the Building (or transfer of Landlord’s interest in the Buildingportion thereof containing the Premises), Landlord shall have the right to transfer the Security, or balance thereof, security to the vendeevendee or lessee, transferee and Landlord shall, upon such transfer and the assumption in writing by such vendee or lessee of the Security Deposit and any such transfer shall release Landlord Landlord's obligations hereunder, be released by Tenant from all liability for the return of the Security. such security and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new landlord for the return or payment thereof. Except in connection with a permitted assignment of the Security. this Lease, Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, monies deposited as security and Landlord shall not be bound by any such assignment, encumbrance, encumbrance or attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used hereinProvided Tenant is not then in default hereunder beyond any applicable notice or cure period, “Letter of Credit” the Security Deposit shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal be reduced to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: 255,908.28 upon (i) that Landlord may make partial Tenant's occupancy of the Premises and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter commencement of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount conduct of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; normal business operations therein and (ii) thatTenant's payment of Fixed Rent for the first (1st) full calendar month for which Fixed Rent is payable by Tenant following exhaustion of the rent concession described in Section 2.2.3 hereof (provided, if the Security Deposit is a letter of credit, that Tenant provides to Landlord a replacement letter of credit in the event applicable reduced amount prior to such reduction).
(e) Tenant shall, promptly after the end of assignment or each fiscal year of Tenant (such fiscal year expiring on March 31), deliver to Landlord Tenant's financial statement current through the end of such fiscal year, prepared and certified by Tenant's certified public accountants, and such other transfer of either Landlord’s interest proof as Landlord may reasonably require to confirm Tenant's gross sales for such fiscal year. If Tenant's gross sales for such fiscal year just ending, as indicated by such financial statement and other proof. exceeded $75,000,000.00, and Tenant is not then in default under this Lease or beyond the expiration of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations applicable grace notice or other entity changes)cure period, the Letter of Credit Security Deposit shall be freely transferable by Landlordreduced to (or if previously so reduced, without charge shall remain at) $127,954.14 (provided, if the Security Deposit is a letter of credit, that Tenant provides to Landlord a replacement letter of credit in the applicable reduced amount prior to such reduction). If Tenant's gross sales for such fiscal year just ending, as indicated bv such financial statement and without recourseother proof, did not exceed $75,000,000.00, or if Tenant fails to 46 provide such financial statement and other information within ninety (90) days after the assignee or transferee end of such interest and fiscal year, the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder Security Deposit shall be increased proportionately for any space leased to (or shall, if then at such amount, remain at) $255,908.28 (and Tenant pursuant shall immediately pay to the Offer Right. Tenant’s failure Landlord sufficient funds to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit Deposit or a replacement Letter letter of Credit credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditincreased amount).
Appears in 1 contract
Sources: Lease (Ion Networks Inc)
Security. (a) Tenant, at Tenant’s sole cost The Tenant has deposited with the Landlord and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery maintain throughout the term as security for the performance of this Lease lease the sum set forth in Paragraph 1.10. Landlord may utilize said security deposit to Landlord, with the Letter perform any unfulfilled obligation of Credit (defined below) Tenant hereunder or cash to cure any Tenant default. Tenant acknowledges that Landlord has a perfected security interest in the amount of the Security specified security deposit Tenant may not assign, hypothecate, pledge, mortgage or transfer its rights in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Leaseor to such deposit. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease all or any other document executed portion of such deposit is used by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage Landlord to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned cure a default by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver immediately restore the deposit to Landlord in immediately available funds the foregoing amount, and the event of default will not be deemed “cured” until the applied deposit has been so restored by Tenant. Said sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to the Tenant no later than sixty (60) days after without interest at the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) term herein, if the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed complied with all of its obligations hereunder.
(b) The Security ; provided, however, if at any time during the term of this lease the Tenant makes any assignment for the benefit of creditors, or is decreed insolvent or bankrupt according to law, or if a receiver shall be appointed for the Tenant, said security deposit shall not be deemed considered an advance Rent deposit asset of the Tenant in any legal proceedings; instead, it shall be retained by the Landlord as damages for rental or an advance payment lease charges due and owing, and to defray real estate commissions and/or real estate department expenses for the leasing of the Demised Premises to the Tenant, and for re-leasing the Demised Premises to future tenants, for the potential loss of future rentals and for the cost of alterations to be made in the Demised Premises on behalf of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsfuture tenant.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. Tenant has deposited with Landlord the sum of Ten Thousand Two Hundred Three and 56/100 Dollars (a$10,203.56) Tenantrepresenting the equivalent of three (3) months' Rent including 7.0% sales tax, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If It is agreed that, in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Base Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Additional Rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Premises, whether such loss, damages or deficiency accrue damage accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of event the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed at the Termination Date; (ii) end of the removal Lease, and after delivery of Tenant from the Premises; (iii) the surrender entire possession of the Premises to Landlord. In the event of a sale of the Land and Building, of which the Premises form a part, Landlord shall have the right to transfer the security to the vendee, and Landlord shall thereupon be released by Tenant from all liability for the return of such security and Tenant agrees to look solely to the new Landlord in accordance with this Lease; for the return of said security. It is agreed that the provisions hereof shall apply to every transfer or (iv) assignment made of the date Rent Adjustments owed pursuant security to this Lease have been computed a new Landlord. Tenant further covenants that it will not assign or encumber the monies deposited herein as security and that neither Landlord nor its assigns shall be bound by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit assignment or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordencumbrance. Landlord shall not be required to keep the Security separate from its general security in a segregated account and the security may be commingled with other funds of Landlord, and in no event shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitysecurity. In The mortgagee holding a mortgage encumbering the Building shall not be responsible to Tenant for the security deposit in the event such mortgagee becomes the owner of the Building through foreclosure or by reason of a deed in lieu thereof. Tenant agrees not to look to any sale, lease Mortgagee or transfer Purchaser at any foreclosure sale or Grantee in a Deed given in lieu of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability foreclosure for the return of the Security. Tenant thereafter shall look solely any Security Deposit given to Landlord unless Landlord has given such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt Deposit to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsentity.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Concurrent with Tenant’s its execution and delivery of this Lease, Tenant is depositing with Landlord the sum of $441,876.00 by check, subject to collection, as the security deposit under this Lease to Landlord, with (the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) ). Landlord shall retain such amount as security for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, . Landlord shall in no event be obligated to apply the Security (except to Rent in arrears or damages for Tenant’s default, although Landlord may so apply the Security, at its option. Landlord’s right to bring a special proceeding to recover or otherwise obtain possession of the Leased Premises for non-payment of Rent or for any amount retained for application other reason shall not in any event be affected by reason of the fact that Landlord holds the Security. The Security, if not applied toward the payment of Rent in arrears or toward the payment of damages suffered by Landlord as provided herein) by reason of Tenant’s default, shall be returned or paid over to Tenant without interest, when this Lease is terminated, but in no later than sixty (60) days after event shall the latest of: (i) Security be returned until Tenant has vacated the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Leased Premises by Tenant and delivered possession thereof to Landlord in accordance with the terms and provisions of this Lease; or (iv) , which shall be verified by a walk-through by Landlord to confirm that all equipment is in good working order, reasonable wear excepted. If Landlord repossesses the Leased Premises, because of Tenant’s default, Landlord may apply the Security to damages suffered to the date Rent Adjustments owed pursuant of such repossession and may apply the Security to this Lease have been computed such damages as may be suffered or shall accrue thereafter by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all reason of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to performdefault. Except as otherwise required by the Laws, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required obligated to keep the Security as a separate from its general funds fund and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber may commingle the Security with its own funds. If Landlord applies the Security in whole or any interest in itpart, and Landlord shall not be bound Tenant shall, upon demand by any such assignmentLandlord, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return deposit sufficient funds to replenish the Security to the original Tenant without liability to any assigneeamount required hereunder. Tenant hereby waives any and all rights Failure of Tenant under the provisions to deposit such additional security within fifteen (15) business days of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition therefore shall entitle Landlord to draw upon avail itself of the Letter remedies provided in this Lease for nonpayment of CreditRent by Tenant. Landlord may (but shall So long as Tenant has not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof been in any manner Landlord is permitted to use the Security default under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use at the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount end of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) fifth full year of the then-required amount of Lease Term, the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, Security Deposit shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior reduced to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit$331,407.00.
Appears in 1 contract
Security. (ai) TenantAs a further inducement to Landlord to enter into the Lease and in consideration thereof, at Tenant’s sole cost and expense, Tenant shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease deliver to Landlord, with the Letter of Credit (defined below) or cash upon execution hereof a security deposit in the amount of the equal to Two Hundred Thirty-Five Thousand Two Hundred Thirty-Five and No/100 Dollars ($235,235.00) (“Security specified in Section 1.01(13Deposit”) as security (“Security”) for a guarantee of the full and faithful keeping, performance and observance of all the covenants, agreements, terms, provisions and conditions of the Lease provided to be kept, performed and observed by Tenant (expressly including, without being limited to, the payment as and when due of each the Fixed Rent, Additional Rent, charges and every termdamages payable by Tenant under the Lease) and the payment of any and all other damages for which Tenant shall be liable by reason of any act or omission contrary to any of said covenants, provisionagreements, covenantterms, and condition provisions or conditions; it is agreed that in the event Tenant defaults in respect of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this the Lease, including, but not limited to, the payment of Fixed Rent or and Additional Rent, and fails to cure the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)same within any applicable grace and/or notice periods, then then, Landlord may use, apply, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any rent and Additional Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performdefault in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthe Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part any portion of the SecuritySecurity Deposit, Tenant shall within ten (10) business days after immediately upon Landlord’s demand pay or deliver to Landlord in immediately available funds the sum necessary to replace restore the amount used, so applied or retainedso that Landlord has on deposit the full amount of the Security Deposit. If In the event that Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) Deposit shall be returned or paid over to Tenant no later than sixty within twenty (6020) days Business Days after the latest of: (i) the Termination Expiration Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the land and Building or transfer leasing of Landlord’s interest in the Building, of which the Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, Security Deposit to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and T▇▇▇▇▇ agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said Security Deposit, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the SecuritySecurity Deposit to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security Deposit and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(cii) The Security Deposit shall be in the form first approved by Landlord and shall be either, at Landlord’s election, (a) in cash, by wire transfer of immediately available federal funds to an account designated by Landlord, or (b) an irrevocable, Evergreen, clean, commercial letter of credit issued by a commercial bank first approved by Landlord and (i) that is (x) chartered under the laws of the United States, any State thereof, or the District of Columbia, (y) insured by the Federal Deposit Insurance Corporation, and (z) authorized by the State of New York to conduct banking business in New York State and a member of the New York Clearing House Association, (ii) whose long-term, unsecured and unsubordinated debt obligations are rated in the highest category by at least two of Fitch Ratings Ltd. (“Fitch”), M▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Rating Services (“S&P”) or their respective successors and assigns (collectively, the “Rating Agencies”) (which shall mean AAA from Fitch, Aaa from Moody’s and AAA from S&P), and (iii) which has a short term deposit rating in the highest category from at least two Rating Agencies (which shall mean F-1 from Fitch, P-1 from Moody’s and A-1 from S&P) (all of the foregoing are collectively referred to herein as the “LC Issuer Requirements”). If Tenant fails timely to perform at any obligation under this Article Fivetime during the Term, such breach the LC Issuer Requirements are not met, or if the financial conditions of an issuer of a letter of credit then held by Landlord changes in any other materially adverse way, as determined by Landlord in its sole, but reasonable discretion, then Landlord shall constitute a Default by Tenant under this Lease without any have the right to or requirement require that Tenant obtain from a different issuer, which complies with the LC Issuer Requirements, a substitute letter of any further credit that complies in all respects with the requirements of this Article, and Tenant’s failure to obtain such substitute letter of credit within five (5) days following L▇▇▇▇▇▇▇’s written demand therefor (and with no other notice or cure or grace period under any other Article of this Leasebeing applicable thereto, except such notice and cure period expressly provided under this Article Five.
(dnotwithstanding anything contained herein to the contrary) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft entitle Landlord to immediately draw upon the then existing letter of credit issuedwithout further notice to Tenant and to apply and hold such proceeds as a cash security deposit hereunder. In the event that the issuer of any letter of credit held by Landlord is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation, presentable and payable at or any successor or similar entity, then, effective as of the office date such receivership or conservatorship occurs, said letter of a major national bank satisfactory credit shall be deemed to not meet the requirements of this Article, and, within five (5) days thereof, Tenant shall replace such letter of credit with other collateral acceptable to Landlord in its reasonable discretion (the “Bank”)and T▇▇▇▇▇’s failure to do so shall, naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding notwithstanding anything contained herein to the contrary, Landlord hereby approves of Comerica Bank as constitute a default under this Lease to which no notice or grace or cure periods shall be applicable other than the Bankaforesaid five (5) day period. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt The form of the substitute. The Letter of Credit Security Deposit shall provide: permit Landlord (ia) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit thereon up to the full amount thereof, as determined by Landlord, and of the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, credit evidenced thereby in the event of assignment a default by Tenant or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), b) to draw the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit full amount required to be maintained hereunder shall be increased proportionately thereof if for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use reason the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects Deposit is not to terminate the Lease, but to use the Letter of Credit Proceeds, then renewed within ten sixty (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (3060) days prior to its expiration in date. The Security Deposit (and each renewal thereof) shall (i) be for a manner term of not less than one (1) year (except that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder last Security Deposit shall be in full force and effect continuously until for a term expiring sixty (60) days after the date (the “L/C Expiration Date”), (ii) expressly provide for return the issuing bank to notify Landlord in writing not less than sixty (60) days prior to its expiration as to its renewal or non-renewal, as the case may be, and (iii) if not so renewed each year (or later period of expiration) shall be immediately available for Landlord to draw up to the full amount of such credit. Not less than sixty (60) days prior to the expiration date of the Security described Deposit (and every renewal thereof), Tenant shall deliver to Landlord a renewal or new Security Deposit in Subsection the form of a letter of credit, subject to all of the conditions aforesaid. Failure by T▇▇▇▇▇ to comply with the provisions of this Article, shall be deemed a material default hereunder entitling Landlord to exercise any and all remedies as provided in this Lease for default in the payment of Fixed Rent and, to draw on the Security Deposit up to its full amount. Any portion of the Security Deposit held in the form of cash shall be additionally subject to the following terms: (A) Landlord shall have no obligation to pay interest on any such cash Security Deposit and (B) Landlord may commingle the cash Security Deposit with other funds of Landlord.
(iii) Provided (a) above. No more often than once per yearTenant is not then in default of any of the terms and conditions of this Lease (beyond any applicable notice and cure periods; provided that in no event shall any such reduction occur until such time as any such default shall be cured), and (b) Tenant provides Landlord with a written reduction request on or prior to the date that is the thirtieth (30th) day prior to the third (3rd) anniversary of the Rent Commencement Date, then effective on the date that is third (3rd) anniversary of the Rent Commencement Date, Tenant shall be entitled to a reduction of a portion of the Security Deposit in the amount of Eighteen Thousand One Hundred One and 54/100 Dollars ($18,101.54); whereby the Security Deposit shall be reduced to the amount of Two Hundred Seventeen Thousand One Hundred Thirty-Three and 46/100 Dollars ($217,133.46), which amount shall remain the amount of the Security Deposit for the balance of the term of this Lease.
(iv) Tenant acknowledges that Landlord would not have the right to require Tenant to deliver entered into this Lease without J▇▇ ▇▇, T▇▇▇▇▇’s principal, delivering to Landlord, on 15 days prior noticeits successors and assigns, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, guaranty in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain form attached hereto as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.Schedule 34.2
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Lessee has deposited with Tenant’s execution and delivery Lessor the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $656.25 as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any Lessee of the terms, provisions, covenants and conditions of this Lease or Lease; it is agreed that in the event Lessee defaults in respect to any other document executed by Tenant in connection with of the terms, provisions and conditions of this Lease, including, including but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord Lessor may use, apply, or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Lessee is in default or for any sum which Lessor may expend or may be required to expend by reason of Tenant’s failure Lessee's default in respect to performany of the terms, covenants, and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (leased premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Lessor. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant Lessee shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants covenants, and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days Lessee, with interest, after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the leased premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityLessor. In the event of any salea sale of the land and building of which the leased premises form a part, lease hereinafter referred to as the building, or transfer leasing of Landlord’s interest in the Buildingbuilding, Landlord Lessor shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Lessor shall release Landlord thereupon be released by Lessee from all liability for the return of such security and Lessee agrees to look to the Security. Tenant thereafter shall look new Lessor solely to such vendee, transferee or lessee for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Lessor. Tenant shall Lessee further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Lessor nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment assignment, or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Leaseany bankruptcy or other proceeding against or by Lessee under Paragraph 35 ("ESTOPPEL LETTER") herein, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver it is agreed that all such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required security deposit held hereunder shall be in full force deemed to be applied first to rent and effect continuously until the date (the “L/C Expiration Date”) other charges first due to Lessor for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit all periods prior to the filing of any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditsuch proceedings.
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Security. 5.1 In consideration of the Lenders making the Facility available to the Company and as a continuing security for the due and prompt payment, performance and discharge of the Cayman Obligations, the Chargor as legal and beneficial owner hereby:
(a) Tenantcharges in favour of the Chargee for its benefit and the benefit of the other Secured Parties by way of a second priority fixed charge the Charged Shares;
(b) charges in favor of the Chargee for its benefit and the benefit of the other Secured Parties by way of second priority fixed charge all benefits present and future, at Tenantactual and contingent accruing in respect of the Charged Property and all the Chargor’s sole cost right, title and expense, shall provide Landlord, simultaneously with Tenant’s execution interest to and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount Charged Property (to the extent not effectively charged under Sub-Clause (a)); and
(c) assigns, and agrees to assign, absolutely by way of second priority security in favour of the Security specified in Section 1.01(13) as security (“Security”) Chargee for its benefit and the full benefit of the other Secured Parties all its rights, present and faithful performance by Tenant of each future, actual and every termcontingent, provision, covenant, and condition of this Lease. If Tenant fails timely relating to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage Charged Property (to the Premises caused extent not effectively charged under Sub-Clause (a)).
5.2 The Chargor shall remain liable to perform all the obligations assumed by Tenant (excluding normal wear it in relation to the Charged Property and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment Chargee shall be under no obligation of any Rent not paid when due, for kind whatsoever in respect thereof or be under any liability whatsoever in the cost of repairing such damage, for the cost of cleaning the Premises, for the payment event of any other sum which Landlord may expend failure by the Chargor to perform its obligations in respect thereof.
5.3 If the Chargee at any time receives or may be required is deemed to expend by reason have received notice of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains subsequent Security Interest affecting all or part of the Security, Tenant shall within ten (10) business days after demand pay Charged Property or deliver to Landlord in immediately available funds any assignment of transfer of the sum necessary to replace Charged Property which is prohibited by the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions terms of this LeaseCharge, all payments thereafter by or on behalf of the Security (except any amount retained for application by Landlord as provided herein) Chargor to the Chargeee shall be returned or paid over treated as having been credited to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender a new account of the Premises by Tenant to Landlord Chargor and not as having been applied in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return reduction of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable Cayman Obligations as at the office of a major national bank satisfactory to Landlord in its reasonable discretion (time when the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in Chargee receives such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Second Priority Charge Agreement (Rightside Group, Ltd.)
Security. (a) Tenant7.01. As set forth in Paragraph 1.01V, at Tenant’s sole cost and expense, Subtenant shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease deliver to Landlord, with the Letter of Credit (defined below) or cash in the amount of Sublandlord the Security specified in Section 1.01(13) Deposit as security (“Security”) for the full and faithful payment and performance by Tenant Subtenant of each and every term, provision, covenant, and condition of Subtenant's obligations under this LeaseSublease. If Tenant fails timely Subtenant defaults in the full and prompt payment and performance of any of its obligations under this Sublease, than after notice to perform (Subtenant and failure of Subtenant to cure any such defaults within applicable notice and cure grace periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord Sublandlord may use, apply, apply or retain the whole or any part of the Security security to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sums as to which Subtenant is in default or for any sum which Landlord Sublandlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation Subtenant's default in respect of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performof Subtenant's obligations under this Sublease, including, but not limited towithout limitation, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this LeaseSublandlord. If Landlord Sublandlord shall so usesuse, applies apply or retains all retain the whole or any part of the Securitysecurity, Tenant Subtenant shall within ten (10) business days after upon demand pay or deliver immediately deposit with Sublandlord a sum equal to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or and retained, as security as aforesaid. If Tenant has Subtenant shall fully and faithfully performed pay and observed perform all of Tenant’s Subtenant's obligations under the terms, provisions, covenants and conditions of this LeaseSublease, the Security (except security or any amount retained for application by Landlord as provided herein) balance thereof to which Subtenant is entitled shall be returned or promptly paid over to Tenant no later than sixty (60) days Subtenant after the latest of: (i) the Termination Date; (ii) the removal date on which this Sublease shall expire or sooner terminate, and after delivery to Sublandlord of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityDemised Premises. In the event of any salesale or leasing of the Land, lease or transfer of Landlord’s interest in the Building, Landlord Sublandlord shall have the right to transfer the Security, or balance thereof, security to which Sublandlord is entitled to the vendee, transferee vendee or lessee and any such transfer upon notice to Subtenant and, provided Sublandlord transfers the security as provided for herein, Sublandlord shall release Landlord thereupon be released by Subtenant from all liability for the return of the Security. Tenant thereafter or payment thereof; and Subtenant shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the Securitysame to the extent of such transfer; and the provisions hereof shall apply to every transfer or assignment made of the same to a new landlord. Tenant Subtenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in itmonies deposited herein as security, and Landlord neither Sublandlord nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, The Tenant shall at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, all times maintain on deposit with the Letter of Credit (defined below) or Landlord cash in the amount of the Security specified in Section 1.01(13) Required Amount as security (“Security”) for the full and faithful keeping, observance and performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the covenants, agreements, terms, provisions, covenants provisions and conditions of this Lease provided to be kept observed or any other document executed performed by the Tenant in connection with this Lease, including, but not (expressly including without being limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear as and tear), then Landlord may use, apply, or retain the whole or any part when due of the Security for fixed rent, percentage rent, if any, additional rent and any other sums or damages payable by the Tenant under this Lease) and the payment of any Rent not paid when due, and all other damages for which the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may Tenant shall be required to expend liable by reason of Tenant’s failure any act or omission contrary to performany of said covenants, and otherwise for compensation agreements, terms, provisions or conditions. If at any time the Tenant shall be in default in the payment as aforesaid of Landlord for any such fixed rent, percentage rent, additional rent, and/or any other loss sums or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency shall otherwise be in default in the reletting keeping, observance or performance of any of the Premises (whether such losscovenants, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rentagreements, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and provisions or conditions of this Lease, then at the Security (except any amount retained for application Landlord's election, the cash on deposit with it as aforesaid may be applied by the Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. fixed rent, percentage rent, additional rent, other sums or damages in respect to which the Tenant shall not assign is so in default and/or, if the Tenant is otherwise in default in the keeping, observing or encumber performing as aforesaid of any of the covenants, agreements, terms, provisions or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments conditions of this Lease, said cash on deposit may be applied by the Landlord may return the Security to the original Tenant without liability to payment of such costs and expenses as the Landlord shall incur in curing any assigneesuch default. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute as a Default by Tenant under this Lease without any right to or requirement result of any further notice or cure period under such application of any other Article such cash, the amount of this Leasecash so on deposit with the Landlord shall at any time be less than that hereinabove specified, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” the Tenant shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at forthwith deposit with the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, additional cash in an amount equal to $1,084,479.58 andthe deficiency. If, prior at the expiration of the term of this Lease, all of said fixed rent, percentage rent, if any, additional rent, other sums or damages, costs or expenses shall have been paid by the Tenant to any Reduction (defined below) while a Letter of Credit is serving as Security, the Landlord and the Tenant shall have delivered not be in default in the keeping, observance or performance of any other covenant, agreement, term, provision or condition of this Lease, then the Landlord shall return to the Tenant all, or such part of the cash, if any, then on deposit with the Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditArticle.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, 19.1 Simultaneously with the Letter delivery to Sublandlord of Credit an executed counterpart of the Sublease, Subtenant shall tender Security (as defined belowherein) or cash in the amount of $273,090.00 (5 times monthly rent) in the form of either (i) a check payable to Sublandlord (the “Cash Security”) or (ii) an irrevocable letter of credit in favor of Sublandlord (or any other beneficiary as may be designated by Sublandlord during the term hereof, in which event Subtenant shall pay any transfer or other fees which may be imposed by the issuing bank), in a form reasonably acceptable to Sublandlord (the “LC”) (the Cash Security specified in Section 1.01(13) and LC shall hereinafter be referred collectively as security (the “Security”) ). The Security shall be tendered for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any Subtenant of the terms, provisions, covenants and conditions of this Lease Sublease. Sublandlord shall not be required to deposit the Cash Security in a segregated or interest-bearing account, unless required by applicable law, but, in the event that Sublandlord shall maintain same in an interest-bearing account, Sublandlord shall be permitted to retain from the Cash Security, as an administrative fee, one percent (1%) of any other document executed by Tenant in connection with this Leaseinterest accruing thereon, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused extent permitted at law. In the event of a default by Tenant (excluding normal wear and tear)Subtenant under the Sublease, then Landlord Sublandlord may use, apply, or retain retain, the whole whole, or any part part, of the Security Security, to the extent required for the payment of any Rent not paid when dueRent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum which Landlord Sublandlord may expend expend, or may be required to expend expend, by reason of Tenant’s failure to perform, and otherwise for compensation such event of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performdefault, including, but not limited to, any loss of future Rent and any damage damages or deficiency deficiencies in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and Sublet Premises. In the amount event that any portion of the unpaid past RentSecurity is used, future Rent lossapplied, and all other lossesor retained, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so usesby Sublandlord, applies or retains all or part of the Securityas permitted hereunder, Tenant Subtenant shall replenish such amount within ten five (105) business days after receipt of Sublandlord’s written demand pay or deliver to Landlord in immediately available funds therefor. Upon the sum necessary to replace expiration of the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all term of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty Subtenant (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall less any such return be construed amount applied as an admission by Landlord that Tenant has performed all of its obligations provided for hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days after (i) the Expiration Date or earlier termination of the Sublease or (ii) Subtenant’s surrender of the Sublet Premises to Sublandlord in the condition required hereunder, whichever is the later to occur.
19.2 Notwithstanding anything contained in Section 19.1 hereof to the contrary, provided (i) that Subtenant has not been in default under the Sublease at any time prior to its expiration in a manner that fully complies with thereto and (ii) the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return amount of the Security described in Subsection (a) above. No more often than once per yearis then on deposit with Sublandlord, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Fivethen, in the event that Landlord determinessuch event, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain effective as the issuer of the Letter first day of Credit. Any advice from the issuer that it intends twenty-five (25th) complete calendar month following the Commencement Date, upon Subtenant’s delivery to withdraw Sublandlord of a written notice requesting a reduction in the amount of the Security held by Sublandlord, either the (i) Cash Security shall be reduced to $163,854.00 (3 times monthly rent) and Sublandlord shall refund to Subtenant the remaining balance of the Cash Security then on deposit or not extend (ii) the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date LC shall entitle the Landlord to immediately draw upon the Letter of Creditbe replaced with an LC for $163,854.
Appears in 1 contract
Security. 4.01. Tenant has deposited with Landlord either the Security Letter (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (as such term is defined belowin Section 4.02 hereof) or cash in the amount sum of the Security specified in Section 1.01(13Twelve Million and 00/100 ($12,000,000.00) Dollars as security (“Security”) for the full and faithful performance and observance by Tenant of each Tenant's covenants and every term, provision, covenant, and condition of obligations under this Lease. If Tenant fails timely to perform (within applicable defaults beyond notice and the expiration of any applicable cure periods) period, in the full and prompt payment and performance of any of the terms, provisions, Tenant's covenants and conditions of this Lease or any other document executed by Tenant in connection with obligations under this Lease, including, but not limited to, the payment of Fixed Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Additional Charges, then Landlord may may, but shall not be required to, use, apply, apply or retain the whole or any part of the Security security so deposited and the interest accrued thereon, if any, to the extent required for the payment of any Fixed Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of and Additional Charges or any other sums as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord shall so usesuse, applies apply or retains all retain the whole or any part of the Securitysecurity or the interest accrued therein, if any, Tenant shall within ten (10) business days after upon demand pay or deliver immediately deposit with Landlord a sum equal to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or retainedretained (but not in excess of $12,000,000, as such amount may be reduced from time to time as provided in Section 4.06 hereof), as security as aforesaid failing which Landlord shall have the same rights and remedies as for the non-payment of Fixed Rent beyond the applicable grace period. If Tenant has fully shall pay all Fixed Rent and faithfully performed Additional Charges due and observed all of Tenant’s obligations payable under this Lease and shall surrender the terms, provisions, covenants and conditions Premises to Landlord in accordance with the provisions of this Lease, the Security (except security or any amount retained for application by Landlord as provided herein) balance thereof, to which Tenant is entitled, if same has not been previously returned to Tenant in accordance with the provisions of Section 4.06 hereof, shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal end of Tenant from this Lease and after delivery to Landlord of entire possession of the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any a sale, lease transfer or transfer leasing of Landlord’s 's interest in the BuildingBuilding whether or not in connection with a sale, transfer or leasing of the Land to a vendee, transferee or lessee, Landlord shall have the right to transfer the Securityunapplied part of the security and the interest thereon, or balance thereofif any, to which Tenant is entitled, to the vendee, transferee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. or payment thereof, and Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the Securitysame. The provisions of the preceding sentence shall apply to every subsequent sale, transfer or leasing of the Building, and any successor of Landlord shall, upon a sale, transfer, leasing or other cessation of the interest of 34 such successors in the Building, whether in whole or in part, pay over any unapplied part of said security to any vendee, transferee or lessee of the Building and shall thereupon be relieved of all liability with respect thereto. Except in connection with a permitted assignment of this Lease, Tenant shall not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security or any interest in itthereon to which Tenant is entitled, and neither Landlord nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In any event, and in the absence of evidence satisfactory to Landlord of an assignment of the right to receive the security, or the remaining balance thereof, Landlord may return the security to the original Tenant regardless of one or more assignments of this Lease, Landlord may return the Security . If and to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under extent that the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord deposit is held in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord cash form (including, without limitation, consolidations, mergers, reorganizations or other entity changesany proceeds from a drawing down of the Security Letter which have not been applied to Tenant's obligations in accordance with this Article 4), the Letter of Credit such cash shall be freely transferable by Landlordheld in a segregated interest-bearing account at a commercial bank licensed to do business in New York or in a self-insured money market fund having assets of not less than $500,000,000. Any interest earned on such account shall be remitted to Tenant annually.
4.02. In lieu of the cash security deposit provided for in Section 4.01 hereof, without charge and without recourse, to Tenant may at any time during the assignee or transferee of such interest and the Bank shall confirm the same term hereof deliver to Landlord and shall thereafter, except as otherwise provided herein, maintain in effect at all times during the term hereof, a clean, irrevocable letter of credit, in form and substance substantially as set forth on Exhibit G-1 or Exhibit G-2 annexed hereto (which, in each such assignee case, may be amended after the determination of the Rent Commencement Date solely for the purpose of stating the actual effective dates for the reductions referred to in Section 4.06, provided that the form of such amendment shall be delivered to and approved by Landlord in draft form prior to its issuance, Landlord's approval not to be unreasonably withheld or transfereedelayed), in the amount of the security required pursuant to this Article 4, issued by a commercial bank reasonably satisfactory to Landlord (Landlord hereby acknowledging that Bank of New York is satisfactory for this purpose) and having its principal place of business or its duly licensed branch or agency in the State of New York. Such letter of credit shall have an expiration date no earlier than the first anniversary of the date of issuance thereof and shall be automatically renewed from year to year unless terminated by the issuer thereof by notice to Landlord given by certified or registered mail, return receipt requested not less than sixty (60) days prior to the expiration thereof. Except as otherwise provided in this Article 4, Tenant shall, throughout the term of this Lease deliver to Landlord, in the event of the termination of any such letter of credit, replacement letters of credit in lieu thereof (each such letter of credit and such extensions or replacements thereof, as the case may be, is hereinafter referred to as a "Security Letter") no later than sixty (60) days prior to the expiration date of the preceding Security Letter. The term of each such Security Letter of Credit shall be not less than one (1) year and shall be automatically renewable from year to year as aforesaid. If Tenant shall fail to obtain any replacements of a Security Letter within the time limits set forth in this Section 4.02, Landlord may draw down the full amount of the existing Security Letter and retain the same as security hereunder. In the event Tenant furnishes Landlord with a Security Letter which contains a final expiration date which will occur prior to the date that the security deposit under this Article 4 shall be reduced to zero in accordance with the schedule set forth in Section 4.06 hereof, Tenant shall furnish Landlord with a replacement Security Letter, in form and substance reasonably satisfactory to Landlord, within forty-five (45) days prior to the final expiration date of Tenant's existing Security Letter, and if Tenant fails to furnish such a replacement Security Letter in accordance with the foregoing, Tenant shall be deemed to be in default hereunder and Landlord shall be entitled to draw down the full amount of the existing Security Letter and retain such amount as security hereunder in which event the proceeds thereof shall be applied or held as cash security in accordance with the provisions of Section 4.01 hereof. At any time that Landlord is holding a Security Letter hereunder, Tenant shall have the right to a return of such Security Letter upon delivery to Landlord of a cash security deposit in the form attached as Exhibit G hereto. The Letter amount of Credit amount the security then required to be maintained hereunder under this Article 4 to be held by Landlord in accordance with this Article 4, provided that Tenant shall be increased proportionately give not less than five (5) Business Days prior written notice to Landlord of such election to replace the Security Letter with cash and provided further that until such cash security deposit is delivered to Landlord, Landlord shall retain all of its rights under this Article 4 to present and receive payment on such Security Letter. Tenant shall have the right to substitute for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Security Letter of Credit amount within twenty (20) days following written demand then being held by Landlord a substitute Security Letter which satisfies all of the requirements of this Article 4, provided that Landlord shall constitute a Default not be obligated to relinquish the Security Letter then being held by Landlord until such new Security Letter has been delivered to Landlord.
4.03. In the event that Tenant defaults in respect of any of the terms, provisions, covenants and conditions of this Lease beyond notice and the expiration of any applicable cure period, and Landlord utilizes all or any part of the security represented by the Security Letter but does not terminate this Lease as provided in Article 22 hereof, Landlord may, in addition to exercising its rights as provided in Section 4.01 hereof, retain the unapplied and unused balance of the principal amount of the Security Letter as security for the faithful performance and observance by Tenant under thereafter of the terms, provisions, and conditions of this Lease, and may use, apply, or retain the whole or any part of said balance to the extent required for payment of Fixed Rent, Additional Charges, or any other sums as to which Tenant is in addition shall entitle Landlord to draw upon default after the Letter giving of Credit. notice and the expiration of any applicable cure period or for any sum which Landlord may (but shall not expend or be required to) draw upon to expend by reason of Tenant's default in respect of any of the Letter terms, covenants, and conditions of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article FiveLease. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount applies or retains any portion or all of the Letter of Credit Proceeds so utilized by Landlordsecurity delivered hereunder, Tenant shall immediately forthwith restore the amount so applied or retained so that at all times the amount deposited shall be not less than the security required by Article 4. If Tenant shall deliver a new Security Letter to Landlord an amendment in the amount required hereunder to restore the security deposit to the Letter amount required by this Article 4 in accordance with the foregoing, Landlord agrees to promptly return to Tenant any cash amount then being held by Landlord as security hereunder. 36
4.04. In the event of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) sale of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per yearBuilding, Landlord shall have the right to require Tenant to deliver a replacement Security Letter naming the new Landlord as beneficiary and, if Tenant shall fail to timely deliver the same within ten (10) Business Days after written request therefor, to draw down the existing Security Letter and retain the proceeds as security hereunder until a replacement Security Letter is delivered. Tenant hereby acknowledges and agrees that in connection with any transfer by Landlord or its successors or assigns hereunder of Landlord's interest in the Security Letter delivered by Tenant pursuant to this Article 4, Tenant shall be solely liable to pay any transfer fees charged by the issuing bank to Landlord or the transferee in connection with any such transfer of the Security Letter, as Additional Charges hereunder, within twenty (20) days after delivery to Tenant of an invoice therefor, but Tenant shall not be responsible for such transfer fees (i) if the transferee is an Affiliate (as such term is defined in Section 44.06 hereof) of Landlord, or (ii) for more than one transfer in any two (2) year period.
4.05. Provided and on 15 days prior noticecondition that Tenant is not then in default, a replacement Letter after notice and the expiration of Credit on any applicable cure period, with respect to any of the same terms terms, provisions, covenants and conditions set forth in of this Lease on its part to be performed, then Landlord agrees that the amount of the security deposit required pursuant to this Article Five, 4 hereof shall be reduced automatically in accordance with the event that Landlord determines, in its good faith judgment, that following schedule:
(i) from and after the issuing Bank is no longer satisfactory to remain as the issuer first anniversary of the Letter Rent Commencement Date, the amount of Creditthe security deposit shall be reduced by $2,400,000.00, to $9,600,000.00;
(ii) from and after the second anniversary of the Rent Commencement Date, the amount of the security deposit shall be further reduced by $2,400,000.00, to $7,200,000.00;
(iii) from and after the third anniversary of the Rent Commencement Date, the amount of the security deposit shall be further reduced by $2,400,000.00, to $4,800,000.00;
(iv) from and after the fourth anniversary of the Rent Commencement Date, the amount of the security deposit shall be further reduced by $2,400,000.00, to $2,400,000.00; and
(v) from and after the fifth anniversary of the Rent Commencement Date, the amount of the security deposit shall be reduced to $0, and any remaining security including any interest accrued thereon, shall be returned to Tenant. Any advice from If Tenant is not entitled to a reduction of the issuer that it intends security deposit on any of foregoing dates by reason of Tenant then being in default under this Lease after the giving of notice and the expiration of any applicable cure period as hereinabove provided, then provided Landlord has not terminated this Lease by reason of such default or applied the security deposit (or a portion thereof in excess of the applicable reduction), Tenant's right to withdraw or not extend have the Letter amount of Credit prior the security deposit reduced pursuant to any scheduled annual expiration or the L/C Expiration Date this Section 4.05 shall entitle the Landlord to immediately draw be reinstated upon the Letter Tenant's cure of Creditsuch default.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 15 Inc)
Security. (a) TenantOn the Effective Date, at Tenant’s sole cost and expense, Tenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash Landlord a security deposit in the amount of the Security specified in Section 1.01(13) $213,000.00, as a security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of its obligations under this LeaseLease (the “Security Deposit”). If Tenant fails timely is in default, Landlord may, but without obligation to perform (within applicable notice and cure periods) any of do so, use the termsSecurity Deposit, provisions, covenants and conditions of this Lease or any other document executed portion thereof, to cure the default or to compensate Landlord for all damages sustained by Tenant in connection with this LeaseLandlord resulting from Tenant’s default, including, but not limited toto Landlord’s attorney’s fees and costs. Tenant shall, the payment of Rent or the repair of damage immediately on demand, pay to Landlord a sum equal to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part portion of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend Deposit so applied or may be required used so as to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and replenish the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled Security Deposit held to recover if Landlord were increase such deposit to pursue recovery under Section 11.02 of this Leasethe amount initially deposited with Landlord. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten Within thirty (1030) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions termination of this Lease, Landlord shall return the Security (except any Deposit to Tenant, less such amounts as are reasonably necessary, as determined solely by Landlord, to remedy Tenant’s default(s) hereunder. If the cost to restore the Premises to the condition agreed upon herein exceeds the amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Security Deposit, Tenant shall promptly deliver to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord any and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of such excess sums as reasonably determined by Landlord. Landlord shall not be required to keep the Security Deposit separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. funds, and, unless otherwise required by law, Tenant shall not be entitled to any interest on the SecuritySecurity Deposit. In the no event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord circumstance shall Tenant have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return use of the SecuritySecurity Deposit and, specifically, Tenant may not use the Security Deposit as a credit or to otherwise offset any payments required hereunder, including, but not limited to, Rent or any portion thereof. Tenant thereafter shall look solely to such vendee, transferee or lessee for On the return or payment commencement of any Extended Term the Security. Tenant shall not assign or encumber or attempt deposit with the Landlord, along with the first rent due during such Extended Term, any additional sum as may be required to assign or encumber bring the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit Deposit up to the full amount thereof, as determined by Landlord, and of the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement initial Base Monthly Rent for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditExtended Term.
Appears in 1 contract
Sources: Lease (Echelon Corp)
Security. Subtenant has deposited with Sublandlord a cash sum equal to one monthly installment of Fixed Rent hereunder, as security for (ai) Tenantthe faithful performance and observance by Subtenant of the terms, at Tenant’s sole cost provisions and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery conditions of this Lease to LandlordSublease and (ii) the faithful performance and observance by the applicable subtenants of the terms, with provisions and conditions of each of the Letter of Credit (defined below) or cash Combined Leases. It is agreed that in the amount event Subtenant or the applicable subtenant defaults in respect of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants provisions and conditions of this Lease Sublease or any other document executed by Tenant in connection with this Leaseof the Combined Leases, including, but not limited to, the payment of Rent Rental, Kindred or Sublandlord or the repair applicable sublandlord under a Combined Lease may, after notice to Subtenant and the expiration of damage any applicable grace period provided for in this Sublease or the applicable Combined Lease (as applicable with respect to the Premises caused by Tenant (excluding normal wear and tearsuch default), then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of Rental or any other sum as to which Landlord Subtenant or the subtenant under the applicable Combined Lease is in default or for any sum which Sublandlord or the relevant sublandlord may expend or may be required to expend by reason of Tenant’s failure to performSubtenant's or the applicable subtenant's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for this Sublease or any other loss or damage to Landlord occasioned by Tenant’s failure to performof the Combined Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (or the facility under this Sublease or the applicable Combined Lease, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and Sublandlord or the amount sublandlord under the applicable Combined Lease. In any such event, Subtenant shall promptly on demand deposit with Sublandlord so much of the unpaid past Rent, future Rent loss, and security as shall have been so expended so that Sublandlord shall at all other losses, costs and damages times have the full security deposit required hereunder. In the event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant (a) Subtenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, (b) the Security applicable subtenants of each of the Combined Leases shall fully and faithfully comply with the terms, provisions and conditions of such Combined Leases and (except c) Subtenant has delivered possession of the Premises to Sublandlord upon expiration of the term hereof and otherwise in accordance with the provisions hereof, then the security (less any amount retained for application by Landlord as provided hereinportion thereof which Sublandlord is entitled to retain) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord Subtenant. Sublandlord shall hold such security and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds account to Subtenant with respect to such security and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled required to pay any interest on the Securitythereon. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord Sublandlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any commingle such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under with any other Article of this Lease, except such notice and cure period expressly provided under this Article Fivefunds.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Operations Transfer Agreement (Kindred Healthcare Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously To comply with Tenant’s execution and delivery of this Lease to Landlord, with all such measures as Landlord may reasonably deem advisable for the Letter of Credit (defined below) or cash in the amount security of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) Building and the amount of the unpaid past RentOffice Park and its occupants, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidationsthe evacuation of the Building or Office Park for cause, mergerssuspected cause, reorganizations or other entity changes)for drill purposes, the Letter temporary denial of Credit shall be freely transferable by Landlord, without charge and without recourse, access to the assignee Building or transferee of such interest Office Park, and the Bank shall confirm closing of the same Building or Office Park after regular working hours, (i.e. 8:00 a.m. to Landlord 6:00 p.m. on business week days and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required on Saturdays from 9:00 a.m. to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (2012:00 p.m.) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, Sundays and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom legal holidays (the “Letter Building Service Hours”), subject, however, to Tenant’s right to admittance when the Building is closed after regular working hours by use of Credit Proceeds”) a secure card access system which is automatically activated outside of such regular working hours, or any portion thereof in any manner under such other regulations as Landlord is permitted may prescribe from time to use time. Landlord shall be the Security under this Article Five. In sole determinant of the event Landlord draws upon the Letter of Credit type and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of any access control or courtesy guard services to be provided to the Letter of Credit Proceeds so utilized by LandlordBuilding and Office Park, if any. IN ALL EVENTS, LANDLORD SHALL NOT BE LIABLE TO TENANT, AND TENANT HEREBY WAIVES ANY CLAIM AGAINST LANDLORD, FOR (I) ANY UNAUTHORIZED OR CRIMINAL ENTRY OF THIRD PARTIES INTO THE PREMISES, THE OFFICE PARK OR THE BUILDING, OR (II) ANY DAMAGE TO PERSONS OR ANY LOSS OF PROPERTY IN AND ABOUT THE PREMISES, THE OFFICE PARK OR THE BUILDING, BY OR FROM ANY UNAUTHORIZED OR CRIMINAL ACTS OF THIRD PARTIES, REGARDLESS OF ANY ACTION, INACTION, FAILURE, BREAKDOWN, MALFUNCTION AND/OR INSUFFICIENCY OF THE ACCESS CONTROL OR COURTESY GUARD SERVICES PROVIDED BY LANDLORD. Subject to the foregoing, Tenant may install, at its own expense, a security system for the Premises, provided, however, that (i) Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after obtain Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior written consent prior to its expiration in a manner that fully complies such installation and (ii) Tenant shall provide Landlord with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord means necessary to immediately draw upon enter the Letter of CreditPremises 24 hours per day, 7 days per week.
Appears in 1 contract
Sources: Lease (Quanterix Corp)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously The Tenant concurrently with Tenant’s the execution and delivery of this Lease to Landlord, has deposited with Lessor the Letter sum of Credit $4,240.00
(defined below) or cash in the amount of the Security specified in Section 1.01(131) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If ; it is agreed that, in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear), then Landlord additional rent Lessor may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord tenant is in default or for any sum which Lessor may expend or may be required to expend by reason of Tenant’s failure 's default in respect to performany of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (premises whether such loss, damages damage or deficiency accrue accrued before or after summary proceedings or on other re-entry by Landlord) and Lessor. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: date fixed as the end of the Lease and after delivery of entire possession of the premises to the Lessor. In the event of a sale of the land and Building of ---------------------------
(i1) Lessor acknowledges that Lessee has paid these amounts in full upon execution of previous leases regarding these units with Lessor. which the Termination Date; (ii) premises form a part, Lessor shall have the removal of right to transfer the security to the vendee and Lessor shall thereupon be released by Tenant from all liability for the Premises; (iii) return of such security and Tenant agrees to look to the surrender new Lessor solely for the return of such security. It is agreed that the provisions hereof shall apply to every transfer or assignment made of the Premises security to a new Lessor. Tenant further covenants that he will not assign or encumber the monies deposited herein as security and that neither Lessor nor its assigns shall be bound by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit assignment or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordencumbrances. Landlord Lessor shall not be required to keep the Security separate from its general security in a segregated account and the security may be commingled with other funds of Lessor and in ono event shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositssecurity.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. The Tenant hereby deposits the sum of Four Thousand Two Hundred and 00/100 Dollars (a$4,200.00) Tenant, at Tenant’s sole cost and expense, shall provide with the Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by the Tenant of each and every term, provision, covenant, and condition of this Lease. If In the event Tenant fails timely defaults in respect to perform (within applicable notice and cure periods) any of the terms, provisions, covenants covenants, and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, including but not limited toto payment of any rentals, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may in addition to all other right Landlord’s and remedies available to Landlord hereunder or at law or in equity, use, apply, or retain the whole or any part of the Security security so deposited for the payment of any Rent not paid when due, such rents in default or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which the Landlord may expend or may be required to expend by reason of the Tenant’s failure to performdefault, and otherwise for compensation of Landlord for including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in reletting the reletting of the Premises (demised Premises, whether such loss, damages or deficiency may accrue before or after summary proceedings or other re-entry by the Landlord) , but Tenant’s liability under this Lease shall thereby be discharged only pro tanto; that Tenant shall remain liable for any amounts that such sum shall be insufficient to pay; that Landlord may exhaust any or all rights and remedies against Tenant before resorting to said sum, but nothing herein contained shall require or be deemed to require Landlord to do so. The Tenant agrees to increase the amount of security deposit held by the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were an amount equal to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part one month’s rent of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retainednew lease option. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitysecurity. Furthermore, the Tenant shall not be entitled to any return of his security deposit until after the keys have been returned to the Landlord and the Landlord has had the opportunity to inspect the Premises and to determine that said Premises have been left in good, tenable condition, normal wear and tear excepted. In the event of any sale, lease a transfer or transfer sale of Landlord’s interest in the BuildingPremises, the Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee vendee for the benefit of the Tenant, and any such transfer the Landlord shall release Landlord be considered released by the Tenant from all liability for the return of such security, and the Security. Tenant thereafter shall look agrees tolook to the new Landlord solely to such vendee, transferee or lessee for the return or payment of the Securitysecurity. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord The security deposited under this Lease shall not be bound assigned, pledged or encumbered by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless the Tenant without the written consent of one or more assignments the Landlord. Under no circumstances shall the Security Deposit provided to the Landlord herein be used for the payment of rent at the end of the term of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) lease or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit renewal or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditextensions thereof.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Tenant has deposited with Tenant’s execution and delivery of this Lease to Landlord, with Landlord the Letter of Credit (defined below) or cash in the amount of the Security sum specified in Article N of Section 1.01(13) 1 as security (“Security”) for the full and faithful performance and observance by Tenant of each all of the terms, covenants, conditions, provisions and every term, provision, covenant, and condition agreements of this Lease. If Tenant fails timely shall not be entitled to perform (within applicable notice interest on such security deposit and cure periods) Landlord shall not be obligated to hold such deposit as a separate fund, but may commingle it with other funds. In the event Tenant defaults in respect of any of the terms, provisionscovenants, covenants and conditions conditions, provisions or agreements of this Lease or any other document executed by Tenant in connection with this Lease, including, including but not limited Limited to, the payment of Rent rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)other sums due hereunder, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, rent or another sums as to which Tenant is in default or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, and otherwise for compensation covenants, conditions, provisions or agreements of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited Limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and , Tenant, on demand by Landlord, will forthwith replenish the amount of security or any portion thereof so used or applied by Landlord. In the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisionscovenants, covenants conditions, provisions and conditions agreements of this LeaseLeases, the Security (except any amount retained for application by Landlord as provided herein) security, without interest, shall be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: (i) the Termination Date; (ii) the removal end of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all but only after delivery of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment entire possession of any kind, or a measure of Demised Premises to Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any salea sate of the Land and/or Building or Leasing of the land and/or the entire Building, lease or transfer the sale of Landlord’s interest in the Buildingsuch leasehold, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsaccordance with California Civil Code Section 1950.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Homelife Inc)
Security. Subtenant has deposited with Sublandlord the sum of $362,435.85 (a) Tenantif by check, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease subject to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13collection) as security (“Security”) for the full and faithful performance and observance by Tenant Subtenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this LeaseSublease. If Tenant fails timely It is agreed that in the event Subtenant defaults in respect of any of the terms, provisions and conditions of this Sublease, including, but not limited to, the payment of Rental, Sublandlord may, after notice to perform (within Subtenant and the expiration of any applicable notice grace period provided for in the Prime Lease with respect to such default, use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any Rental or any other sum as to which Subtenant is in default or for any sum which Sublandlord may expend or may be required to expend by reason of Subtenant’s default in respect of any of the terms, covenants and cure periods) conditions of this Sublease, including but not limited to, any damages or deficiency in the re‑letting of the Premises, whether such damages or deficiency accrued before or after summary proceedings or other re‑entry by Sublandlord. In any such event, Subtenant shall promptly on demand deposit with Sublandlord so much of the security as shall have been so expended so that Sublandlord shall at all times have the full security deposit required hereunder. In the event that Subtenant shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited toSublease, the payment of Rent or security shall be returned to Subtenant after the repair of damage to date fixed as the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part end of the Security for the payment Sublease and after delivery of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting possession of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderSublandlord.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Tenant has deposited with Tenant’s execution and delivery Owner the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) $5,499.99* as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If lease; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord Owner may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Tenant is in default or for any sum which Owner may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Owner. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the Buildingdemised premises form a part, Landlord Owner shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Owner shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Owner solely to such vendee, transferee or lessee for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Owner. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Owner nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits*Bears interest - See Rider Par. 63.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Loft Lease (General Credit Corp)
Security. As security for the Loan, Borrower shall at Closing execute and deliver to Lender the Security Agreement, granting to Lender a lien and security interest on, in and to all of the assets described on Exhibit “D” which is attached hereto and made a part hereof, now owned or hereafter acquired, and the proceeds and products thereof (a“Collateral”) Tenantfree of all claims, at Tenant’s sole cost liens and expenseencumbrances except for claims, shall provide Landlordliens and encumbrances, simultaneously with Tenant’s execution if any, listed on Exhibit “D,” except for liens and delivery encumbrances in favor of this Lease to LandlordLender, with the Letter of Credit and except for Permitted Liens (as defined below) or cash ). Borrower authorizes the filing by Lender, in form and substance satisfactory to Lender, of UCC-1 financing statements describing the amount of Collateral and determined by the Security specified Lender to be desirable to perfect the liens and security interests referred to in Section 1.01(13) as this paragraph. As further security (“Security”) for the full Loan, Borrower hereby assigns and faithful performance grants to Lender a security interest in and to all property of Borrower which is or may hereafter be in Lender’s possession (by Tenant of each and every termdeposit, provisionassignment, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periodspurchase or otherwise) in any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, capacity including but not limited toto all monies owed or to be owed by Lender to Borrower, the payment deposits (whether or not Lender has possession of Rent any certificate of deposit or the repair other indicia of damage to the Premises caused by Tenant (excluding normal wear and tearownership), then Landlord may useand stocks, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings bonds or other re-entry by Landlord) securities held in any securities trading account, custodial account or otherwise; and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to performall such property, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord Lender shall have the right same rights as it has to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability Collateral. As further security for the return of Loan, Borrower shall at Closing execute and deliver to Lender the Security. Tenant thereafter shall look solely to such vendeeNegative Pledge Agreement, transferee whereby Borrower will covenant and agree that no claims, liens or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement encumbrances of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” kind shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw be placed upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt vessels owned by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditBorrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Odyssey Marine Exploration Inc)
Security. Lessee has deposited with Lessor the sum of Three Thousand Three Hundred Sixty Eight Dollars and 65/100 Cents (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13$3,368.65) as security (“Security”) for the full and faithful performance and observance by Tenant Lessee of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) ; it is agreed that in the event Lessee defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Basic Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Additional Rent, then Landlord Lessor may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Basic Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of and Additional Rent or any other sum as to which Landlord Lessee is in default beyond the expiration of the applicable cure period or for any sum which Lessor may expend or may be required to expend by reason of Tenant’s failure to performLessee's default beyond the expiration of the applicable cure period in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (premises, whether such loss, damages or deficiency accrue deficiencies accrued before or after summary proceedings or other re-entry by LandlordLessor. In no event may security be used by the Lessee as a credit or right of offset to its obligation to pay rent. Within fifteen (15) and the amount days after written notice to Lessee that any portion of the unpaid past Rentsecurity deposit has been used or applied as provided herein, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this LeaseLessee shall replace the same with Lessor. If Landlord so uses, applies or retains all or part of Lessor shall have the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary same remedies for failure to replace the amount used, applied or retainedsecurity deposit as Lessor has for failure to pay Basic rent. If Tenant has In the event that Lessee shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty Lessee, within thirty (6030) days days, after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Lease and after delivery of entire possession of the Demised Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityLessor. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the BuildingDemised Premises form a part, Landlord Lessor shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any the Lessor shall upon acknowledgment of receipt of the security deposit by such transfer shall release Landlord transferee be deemed released by Lessee from all liability for the return of the Security. Tenant thereafter shall such security, and Lessee agrees to look solely to such vendee, transferee or lessee the new Lessor for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Lessor. Tenant shall Lessee further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Lessor nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Lessor's security shall be held in a short-term interest bearing account, the interest earned thereon shall be accrued and regardless of one or more assignments of this Lease, Landlord may return shall be held by the Security to Lessor as additional security hereunder. At the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt end of the substituteTerm, interest on the security deposit shall be earned for the benefit of the Lessee. The Letter Lessor shall, however, be entitled to deduct on an annual basis that portion of Credit shall provide: (i) the interest permitted by law to be retained by Lessor provided that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall deducted does not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than exceed one (1%) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return percent of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditsecurity.
Appears in 1 contract
Sources: Sublease Agreement (Broadview Networks Holdings Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of The Tenant has this Lease to Landlord, day deposited with the Letter of Credit (defined below) or cash Landlord the first and last month's rent in the amount sum of the Security specified in Section 1.01(13) $9,817.98, as security (“Security”) for the full full, and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the terms, provisions, covenants and conditions of this Lease or any other document executed by lease upon Tenant's part to be performed, which said sum shall be returned to Tenant in connection with this Lease, including, but not limited to, 10 days after the payment of Rent or time fixed as the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part expiration of the Security for the payment of any Rent not paid when dueterm hereof, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages provided that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed carried out all of Tenant’s obligations under the said terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall on Tenant's part to be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordperformed. Landlord shall have the right, but not be required obligation to keep apply any part of said deposit to cure any default of Tenant; and, if Landlord does so, Tenant shall, upon demand, deposit with Landlord the Security separate from its general funds and amount so applied, so that Landlord shall not have any fiduciary duties or other duties (except as set forth in the full deposit on hand at all times during the term of this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitylease. In the event of any salea sale of the building or lease of the land on which it stands, lease or transfer of Landlord’s interest in the Buildingsubject to this lease, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendeevendee or lessee, transferee or lessee and any such transfer and, Landlord shall release Landlord be considered released by Tenant from all liability for the return of the Security. such security and Tenant thereafter shall look to the new Landlord solely to such vendee, transferee or lessee for the return of said security, and it is agreed that this shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord The security deposited under this lease shall not be bound mortgaged, assigned or encumbered by Tenant without the written consent of Landlord, an any such assignment, encumbrance, attempted assignment or attempted encumbranceattempt to do so shall be void. One half of the security deposit will be considered last months rent. This will be used as the last months rent only if tenant is in good standing, and regardless not in default of one or more assignments the lease agreement. The tenant will be responsible for the deficit of this Lease, Landlord may return the Security rental amount due to the original Tenant without liability to any assigneecost of living adjustments. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at lease from Landlord additional space in the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Securitybuilding, Tenant shall have delivered pay additional security deposit to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit landlord in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by first and last month's rent for the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditspace.
Appears in 1 contract
Security. (a) TenantPrior to the Commencement Date, at Tenant’s sole cost and expense, Sub-Subtenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) Sub-Sublandlord $148,727.25 which sum shall be held by Sub-Sublandlord as security (“Security”"Security Deposit") for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any all of the terms, provisionscovenants, covenants and conditions of this Lease or Sub-Sublease to be kept and performed by Sub-Subtenant. If Sub-Subtenant defaults with respect to any other document executed by Tenant in connection with provisions of this LeaseSub-Sublease, including, but not limited to, the provisions relating to the payment of Rent or the repair of damage to the Premises caused by Tenant rent, Sub-Sublandlord may (excluding normal wear and tear), then Landlord may but shall not be required to) use, apply, apply or retain the whole all or any part of the this Security Deposit for the payment of any Rent not paid when duerent or any other sum in default, for the cost of repairing such damage, for the cost of cleaning the Premises, or for the payment of any other sum amount which Landlord Sub- Sublandlord may expend spend or may be required become obligated to expend spend by reason of Tenant’s failure Sub-Subtenant's default or to perform, and otherwise for compensation of Landlord compensate Sub-Sublandlord for any other loss or damage to Landlord occasioned which Sub-Sublandlord may suffer by Tenant’s failure to perform, including, but not limited to, reason of Sub-Subtenant's default. If any loss of future Rent and any damage or deficiency in the reletting portion of the Premises (whether such lossSecurity Deposit is to used or applied, damages or deficiency accrue before or after summary proceedings or other reSub-entry by Landlord) and the amount of the unpaid past RentSubtenant shall, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver therefore, deposit cash with Sub-Sublandlord in an amount sufficient to Landlord in immediately available funds restore the sum necessary Security Deposit to replace the its original amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions Sub-Subtenant's failure to do so shall be a material breach of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord Sub-Sublandlord shall not be required to keep the this Security Deposit separate from its general funds funds, and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant Sub-Subtenant shall not be entitled to any interest on such Security Deposit. If Sub-Subtenant shall fully and faithfully perform every provision of this Sub-Sublease to be performed by it, the Security. In the event of Security Deposit or any salebalance thereof (less any claims by Sub-Sublandlord) shall be returned to Sub-Subtenant (or, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereofat Sub-Sublandlord's option, to the vendeelast assignee of Sub-Subtenant's interest hereunder) within two (2) weeks after the expiration of this Sub-Sublease and after Sub-Subtenant or its last assignee has vacated the Sub-Subleased Premises; provided, transferee or lessee and however, if any such transfer shall release Landlord from all liability for the return portion of the Security. Tenant thereafter shall look solely Security Deposit is applied to such vendeerepair damages to the Sub-Subleased Premises caused by Sub-Subtenant or Sub-Subtenant's agents or to clean the Sub-Subleased Premises, transferee or lessee for then the return or payment balance of the SecuritySecurity Deposit shall be returned to Sub-Subtenant (or, at Sub-Sublandlord's option to the last assignee of Sub-Subtenant's interest hereunder) no later than thirty (30) days from the date Sub-Sublandlord receives possession of the Sub-Subleased Premises. Tenant Sub-Subtenant shall not assign or encumber or attempt to assign transfer or encumber the Security or any interest in it, and Landlord Deposit nor shall not Sub-Sublandlord be bound by Sub-Subtenant's attempt to do so. Should Sub-Sublandlord sell its interest in the Sub-Subleased Premises during the Term hereof and if Sub-Sublandlord deposits with the purchaser there the then unappropriated funds deposited by Sub-Subtenant as aforesaid, thereupon Sub-Sublandlord shall be discharged from any further liability with respect to such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security depositsDeposit.
(cb) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement As additional security for the performance of any further notice or cure period under any other Article every provision of this LeaseSub-Sublease to be performed by Sub-Subtenant, except such notice Sub-Subtenant shall deposit with Sub-Sublandlord concurrently with Sub-Subtenant's execution and cure period expressly provided under delivery of this Article Five.
(d) As used herein, “Letter of Credit” shall mean Sub-Sublease an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance principal amount of such substitute $148,727.25 ("Letter of Credit"), in form and content acceptable to surrender Sub-Sublandlord (including, without limitation, a provision that any termination or cancellation thereof not be effective until at least ten (10) days after delivery of written notice to Sub-Sublandlord of such termination or cancellation) and drawn on a commercial lender acceptable to Sub-Sublandlord, having a term equal to (or being automatically renewable to) July 1, 2003. Upon a default by Sub-Subtenant under this Sub-Sublease, without waiver of any rights that Sub-Sublandlord may have under this Sub-Sublease or at law or in equity as a result of such default, Sub-Sublandlord shall have the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up right to the face amount thereof, and that Landlord may draw upon the Letter of Credit up an amount necessary to cure such default, either prior to, concurrently with or after Sub-Sublandlord's application of all or any portion of the Security Deposit, for payment of any sums as provided in this Section 5 with respect to the full amount thereof, as determined by Landlord, and application of the Bank will pay to Landlord the amount Security Deposit. If all or any portion of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable is drawn upon by LandlordSub-Sublandlord hereunder, without charge and without recourseSub-Subtenant shall, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlorddemand therefore, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of restore the Letter of Credit to Landlord within ten its original amount (10) business days after Landlord’s notice or if drawn upon in full, deliver to Sub-Sublandlord a replacement Letter of Credit), and Sub-Subtenant's failure to do so shall constitute a Default default by Tenant Sub-Subtenant under this LeaseSub-Sublease. The Letter of Credit shall have an initial term of no longer than one (1) yearIn addition, shall be “evergreen”, and shall be extended, reissued or replaced the failure at any time by Tenant, in each case at least thirty (30) days prior Sub-Subtenant to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events keep the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord as required hereunder shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, constitute a replacement Letter of Credit on the same terms and conditions set forth in default by Sub-Subtenant under this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditSub-Sublease.
Appears in 1 contract
Sources: Sub Sublease (Preview Systems Inc)
Security. Tenant has deposited with Owner the sum of Thirty Five Thousand Three Hundred Seventeen Dollars (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13$35,317) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If ; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear), then Landlord additional rent. Owner may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Tenant is in default or for any sum which Owner may expend expand or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Owner. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Lease and after delivery of entire possession of the Demised Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner. In the event of any sale, lease a safe of the land and Building or transfer leasing of Landlord’s interest in the Building, Landlord of which the Demised Premises form a part, Owner shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Owner shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Owner solely to such vendee, transferee or lessee for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Owner. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Owner nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Office Lease (Virage Inc)
Security. 12.1 Simultaneously herewith, TENANT has deposited with LANDLORD **SEE RIDER**, the equivalent of three (a3) Tenantmonths rental, at Tenant’s sole cost as security for the faithful performance and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount observance by TENANT of the Security specified in Section 1.01(13) as security (“Security”) for the full terms, provisions and faithful performance by Tenant of each and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely It is agreed that in the event TENANT defaults in this respect to perform (within applicable notice and cure periods) any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, including without limitation the payment of Rent fixed or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)additional rent, then Landlord LANDLORD may use, apply, apply or retain the whole all or any part portion of the Security security so deposited, to the extent so required for the payment of any Rent not paid when duefixed and/or additional rent and all other sums as to which TENANT is in default, and for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum all sums which Landlord may expend LANDLORD has expended or may be required to expend by reason of Tenant’s failure TENANT'S default in respect to performany of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent including without limitation all damages and any damage or deficiency in deficiencies arising from the reletting of the Premises (demised premises, whether such loss, damages or deficiency accrue before deficiencies arose before, during or after summary proceedings or other re-entry reentry by Landlord) and LANDLORD or otherwise.
12.2 In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant TENANT shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) aforesaid security shall be returned or paid over to Tenant no later than sixty (60) days after TENANT, without interest, upon the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender expiration of the Premises by Tenant to Landlord in accordance with term of this Lease; or (iv) , and after delivery of the date Rent Adjustments owed entire possession of the demised premises to LANDLORD pursuant to the terms of this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderLease.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. 12.3 In the event of any a sale, lease assignment or transfer of Landlord’s LANDLORD'S interest in the Buildingdemised premises, Landlord LANDLORD shall have the right to transfer deliver the Security, or balance thereof, security to the vendeetransferee of the premises, transferee or lessee and any such transfer LANDLORD shall release Landlord thereupon be released by TENANT from all liability for the return of the Securitysuch security. Tenant thereafter shall TENANT agrees in such event to look solely to such vendee, transferee or lessee the new Landlord for the return or payment of the Security. Tenant shall said security.
12.4 TENANT further covenants that it will not assign or encumber or attempt to assign or encumber the Security or any interest in itmonies deposited herein as security, and Landlord that neither LANDLORD nor its successors or assigns shall not be bound by any such assignment, encumbrance, actual or attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Integcom Corp)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s 8.01. Upon execution and delivery of this Lease to LandlordLease, Tenant shall deposit with the Letter of Credit (defined below) or cash in the amount of Landlord the Security specified in Section 1.01(13) as security (“Security”) Deposit for the full and faithful payment and performance by Tenant of each and every term, provision, covenant, and condition of Tenant's obligations under this Lease. If Tenant fails timely to perform (within applicable notice defaults in the full and cure periods) prompt payment and performance of any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with its obligations under this Lease, including, but not limited towithout limitation, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Rent, then Landlord may use, apply, apply or retain the whole or any part of the Security Deposit so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sums as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation 's default in respect of Landlord for any other loss or damage to Landlord occasioned by of Tenant’s failure to perform's obligations under this Lease, including, but not limited towithout limitation, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord shall so usesuse, applies apply or retains all retain the whole or any part of the SecuritySecurity Deposit, Tenant shall within ten (10) business days after demand pay or deliver shall, upon demand, immediately deposit with Landlord a sum equal to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or retainedand retained as the Security Deposit. If Tenant has shall fully and faithfully performed pay and observed perform all of Tenant’s 's obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except Deposit or any amount retained for application by Landlord as provided herein) balance thereof to which Tenant is entitled shall be returned or paid over to Tenant no later than sixty (60) days Tenant, with interest at the then current passbook savings rate, after the latest of: (i) the Termination Date; (ii) the removal date on which this Lease shall expire or sooner end or terminate, and after delivery to Landlord of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityDemised Premises. In the event of any sale, lease sale or transfer leasing of Landlord’s interest in the BuildingBuilding and/or the Land, Landlord shall have the right to transfer the Security, or balance thereof, Security Deposit to which Tenant is entitled to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. or payment thereof and Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the Securitysame. The provisions hereof shall apply to every transfer or assignment made of the same to a new landlord. The Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in itmonies deposited herein as security, and neither Landlord nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Access Integrated Technologies Inc)
Security. SECTION 35.01. The sum of TWENTY THOUSAND FIVE HUNDRED SIXTY-TWO and 50/100 (a$20,562.50) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as DOLLARS representing security (“referred to as "Security”") for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease on Tenant's part to be observed and performed is due and payable at the time of the execution and delivery of this Lease. In the event of any default by Tenant in the observance or performance of any of the terms, covenants or conditions of this Lease on the part of Tenant to be observed or performed including, but not limited to, any default in the payment when due of any monthly installment of the Fixed Rent or increase in the Fixed Rent payable pursuant to the provisions of Articles 23 or 29 or of any additional rent, Owner may use or apply all or any part of the Security for the payment to Owner for Tenant's account of any sum or sums due under this Lease, without thereby waiving any other rights or remedies of Owner with respect to such default. Tenant agrees to replenish all or any part of the Security so used or applied during the Demised Term. After (i) the Expiration Date or any other document executed date upon which the Demised Term shall expire and come to an end, and (ii) the full observance and performance by Tenant in connection with of all of the terms, covenants and conditions of this LeaseLease on Tenant's part to be observed and performed, including, but not limited to, the payment provisions of Rent Article 21, Owner shall return to Tenant the balance of the Security then held or retained by Owner. Owner agrees that, unless prohibited by law or by the repair general policies of damage lending institutions in New York City, Owner shall deposit the Security in an interest-bearing savings account with a bank selected by Owner, in which event all interest accruing thereon shall be added to and become part of the Premises caused Security and shall be retained by Owner under the same conditions as the sum originally deposited as Security. Tenant agrees that Tenant shall not assign or encumber any part of the Security, and no assignment or encumbrance by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole of all or any part of the Security for the payment of any Rent not paid when dueshall be binding upon Owner, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited whether made prior to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such lossduring, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this LeaseDemised Term. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord Owner shall not be required to keep exhaust its remedies against Tenant or against the Security separate from its general funds before having recourse to any other form of security held by Owner and recourse by Owner to any form of security shall not have affect any fiduciary duties or other duties (except as set forth remedies of Owner which are provided in this Article Five) concerning the Security. Tenant shall not be entitled Lease or which are available to any interest on the SecurityOwner in law or equity. In the event of any sale, lease assignment or transfer by Owner named herein (or by any subsequent Owner) of Landlord’s its interest in the BuildingBuilding as owner or lessee, Landlord Owner (or such subsequent owner) shall have the right to assign or transfer the SecuritySecurity to its grantee, assignee or balance thereoftransferee and, in the event of such assignment or transfer, Owner named herein, (or such subsequent Owner) shall have no liability to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability Tenant for the return of the Security. Security and Tenant thereafter shall look solely to the grantee, assignee or transferee for such vendee, transferee or lessee for the return or payment return. A lease of the Security. Tenant entire Building shall not assign or encumber or attempt to assign or encumber be deemed a transfer within the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless meaning of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amountforegoing sentence. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, contrary set forth in the instance foregoing provisions of such substitute Letter of Creditthis Article, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit Owner shall be freely transferable by Landlord, without charge and without recourse, entitled to retain the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1%) year, shall percent administrative fee permitted by law to be “evergreen”, and shall be extended, reissued or replaced retained by Tenant, in each case at least thirty (30) days prior landlords with respect to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) abovesecurity deposits. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.-55- 58 ARTICLE 36
Appears in 1 contract
Sources: Lease Agreement (Appliedtheory Corp)
Security. (aA) TenantFor the purposes hereof, at Tenant’s sole cost and expense, the term “Security Deposit” shall provide Landlord, simultaneously mean the amount of $1,681,054.38. ▇▇▇▇▇▇ has deposited with Tenant’s execution and delivery Owner on the signing of this Lease to Landlordthe Security Deposit by Letter of Credit (as defined and further described in Paragraph 43(B)), with as security for the faithful performance and observance by Tenant of the terms, provisions and conditions of this Lease. Tenant agrees that in the event (i) of the occurrence of an Event of Default or (ii) Tenant has defaulted in the performance of any of its obligations under this Lease, including the payment of any item of Basic Annual Rent or Additional Rent, and the transmittal of a notice of default by Owner is barred by applicable law, Owner may draw the entire amount of the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear portion thereof and tear), then Landlord may use, apply, apply or retain the whole or any part of such proceeds, to the Security extent required for the payment of any Rent not paid when dueBasic Annual Rent, for the cost of repairing such damageEscalation Rent, for the cost of cleaning the Premises, for the payment of or any other Additional Rent or other sum as to which Landlord Tenant is in default, or for any sum that Owner may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for such default (including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner). In the event of any saleaddition, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord Owner may make multiple partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not in accordance with the terms of this Article. If Owner applies or retains any portion or all of the proceeds of the Letter of Credit, Tenant shall forthwith restore the amount so applied or retained by delivering an additional or new Letter of Credit so that, at all times, the amount of the Security Deposit shall be the amount set forth in this Paragraph. Tenant’s failure to terminate restore the Lease, but to use amount so applied or retained within three (3) Business Days after Owner has drawn upon the Letter of Credit Proceedsshall constitute an Event of Default under this Lease. Provided there is no uncured default, then within ten (10) business days after Landlord gives Tenant written notice specifying any balance of the amount proceeds of the Letter of Credit Proceeds so utilized held by LandlordOwner and not used, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit applied or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the retained by Owner as above provided, and any remaining Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, returned to Tenant after the Expiration Date and shall be extended, reissued or replaced by Tenant, after delivery of possession of the entire Demised Premises to Owner in each case at least thirty (30) days prior to its expiration in a manner that fully complies accordance with the requirements terms of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditLease.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost Lessee has deposited with Lessor the sum of twice the monthly rent as security for the faithful performance and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount observance by Lessee of the Security specified in Section 1.01(13) as security (“Security”) for the full terms, provisions and faithful performance by Tenant of each and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) ; it is agreed that in the event Lessee defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rental and tear)additional rent, then Landlord Lessor may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Lessee is in default or for any sum which Lessor may expend or may be required to expend by reason of Tenant’s failure to performLessee's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Lessor. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant Lessee shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days the Lessee after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Lease and after delivery of entire possession of the demised Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityLessor. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the Buildingdemised Premises form a part, Landlord Lessor shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Lessor shall release Landlord thereupon be released by Lessee from all liability for the return of such security; and Lessee agrees to look to the Security. Tenant thereafter shall look new Lessor solely to such vendee, transferee or lessee for the return of such security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new lessor. Tenant shall Lessee further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Lessor nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Sub Lease Agreement (Complete Wellness Centers Inc)
Security. (a) Tenant42.01. Tenant shall deposit with Landlord either the sum of $510,417.00 or the "Security Letter", at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (as defined below) or cash in the amount of the Security specified in Section 1.01(13) 42.02 hereof in such amount, as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions, covenants and every term, provision, covenant, and condition conditions of this Lease. If Such security (including without limitation any cash portion remaining after application of the proceeds drawn down under the Security Letter) shall be deposited in a segregated interest-bearing account at Bankers Trust Company or, upon notice to Tenant, any money center bank and Landlord shall refund to Tenant fails timely to perform (within applicable notice and cure periods) the amount of such interest accrued on the monies so deposited once each calendar year upon written request from Tenant. It is agreed that in the event Tenant defaults in respect of any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or fixed annual rent and additional rent, and such default remains uncured after the repair expiration of damage to the Premises caused by Tenant (excluding normal wear and tear)applicable grace period set forth herein, then Landlord may may, during the continuance of such event of default, use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of fixed annual rent and additional rent or any other sum as to which Tenant is in default after notice and beyond applicable grace periods or for any sum which Landlord may expend or may be required to reasonably expend by reason of Tenant’s failure to perform's default in respect of any of the terms, provisions, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, after notice and beyond applicable grace periods including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) . If and to the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages extent that Landlord would has not applied the security in accordance with the provisions hereof and Tenant shall have delivered to Landlord an executed document in recordable form terminating any memorandum of lease which Tenant shall have caused to be entitled recorded pursuant to recover if Landlord were to pursue recovery under Section 11.02 Article 40 of this Lease. If Landlord so uses, applies or retains all or part of Lease the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease or the earlier termination thereof and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the Land and Building or transfer leasing of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee who shall be bound by the provisions hereof, and any Landlord shall upon such transfer shall release Landlord be released by Tenant from all liability for the return of the Security. such security; and in such event Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new landlord for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security except in connection with an assignment of this Lease permitted hereunder and consented to by Landlord and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments encumbrance except in connection with an assignment of this Lease, Landlord may return the Security Lease permitted hereunder and consented to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon applies or retains any portion or all of the Letter security deposited, Tenant shall forthwith restore the amount so applied or retained so that at all times the amount deposited shall be $510,417.00.
42.02. In lieu of Credit the cash security deposit provided for in Section 42.01 hereof, Tenant may at any time during the term hereof deliver to Landlord and elects not to terminate shall thereafter, except as otherwise provided herein or if Tenant shall, at any time, provide a cash deposit in lieu thereof, maintain in effect at all times during the Leaseterm hereof, but to use the Letter an irrevocable letter of Credit Proceedscredit, then within ten (10) business days after Landlord gives Tenant written notice specifying in form and substance as set forth in Schedule N annexed hereto, in the amount of the Letter of Credit Proceeds so utilized security required pursuant to this Article 42 issued by Landlord, Tenant shall immediately deliver a banking corporation satisfactory to Landlord an amendment to the Letter and having its principal place of Credit business or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment duly licensed branch or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, agency thereof in the event State of New York. Landlord agrees that CoreStates Bank and Credit Lyonnais S.A., New York Branch are satisfactory (such banks and any other bank approved by Landlord determines, in its good faith judgment, are herein called individually an "Approved Bank"). Such letter of credit shall provide that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the full amount thereof may be drawn down by Landlord to immediately draw upon the Letter of Credit.upon
Appears in 1 contract
Security. (a) TenantIn lieu of the security deposit required under Article 34 of the 1998 Lease, at Tenant’s sole cost and expense, Undertenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery Overtenant $47,130 upon the signing of this Lease to LandlordSublease, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant Undertenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of all the terms, provisions, conditions and covenants and conditions of this Lease or Sublease. Undertenant shall not be entitled to any other document executed by Tenant in connection with this Leasecredit for interest earned on said amount. Overtenant shall have the right, includingafter notice to Undertenant and failure to cure within 10 days of receipt of such notice, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security security to the extent required for the payment of any Base Monthly Rent, Additional Monthly Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or additional charges or any other sum Undertenant is in default of or for any sum which Landlord Overtenant may expend or may be required to expend by reason of TenantUndertenant’s failure to perform, and otherwise for compensation of Landlord default for any other loss or damage to Landlord occasioned by Tenant’s failure to performof the terms, includingconditions and covenants of this Sublease, but not limited to, including any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry reentry by LandlordOvertenant.
(b) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so Overtenant uses, applies or retains all the whole or any part of the Securitysecurity (in the event of Undertenant’s default), Tenant Undertenant shall within ten (10) business replenish the security to its original sum five days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace notification by Overtenant of the amount useddue.
(c) Undertenant covenants that it shall not assign, applied mortgage or retainedencumber the security deposit deposited with Overtenant and any attempt to do so shall be void. If Tenant has Overtenant, its successors or assigns shall not be bound by any assignment, mortgage or encumbrance of Undertenant’s security.
(d) Undertenant covenants that it shall not use the security to offset any rent or additional rent including the last month’s rent.
(e) Paragraph 61(B) of the 1998 Lease shall not be applicable to this Sublease.
(f) In the event Undertenant fully and faithfully performed and observed complies with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this LeaseSublease, any part of the Security security not used, applied or retained by Overtenant (except any amount retained for application by Landlord as provided herein) a result of Undertenant’s default hereunder), shall be returned or paid over returned, without interest, to Tenant no later than sixty Undertenant after (60) days after the latest of: (iA) the Termination Date; expiration date of this Sublease and (iiB) the removal delivery of Tenant from the Premises; (iii) the surrender exclusive possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Sublease (Emtec Inc/Nj)
Security. (a) Tenant, at Tenant’s sole cost and expense, Tenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery Landlord on the signing of this Lease the sum of One Hundred Fifty-Five Thousand Five Hundred Seventy-Four and 99/100 Dollars ($155,574.99), or at Tenant's option, a "clean," unconditional, irrevocable and transferable letter of credit (the "Letter of Credit") in the same amount, satisfactory to Landlord, with the Letter of Credit (defined below) or cash in the amount issued by and drawn on a bank satisfactory to Landlord and which is a member of the Security specified in Section 1.01(13New York Clearing House Association, for the account of Landlord, for a term of not less than one (1) year, as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisionscovenants, covenants conditions and conditions provisions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited towithout limitation, the payment surrender of Rent or the repair possession of damage to the Premises caused by Tenant (excluding normal wear to Landlord as herein provided. If an Event of Default shall occur and tear)be continuing, then Landlord may use, apply, or retain apply the whole or any part of the Security security so deposited, or present the Letter of Credit for payment and apply the whole or any part of the proceeds thereof, as the case may be, (i) toward the payment of any Fixed Rent, Escalation Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other item of Rental as to which Tenant is in default, (ii) toward any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited towithout limitation, any loss of future Rent damage, liability or expense (including, without limitation, reasonable attorneys' fees and disbursements) incurred or suffered by Landlord, and (iii) toward any damage or deficiency incurred or suffered by Landlord in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue or accrues before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or any part of the Securityproceeds of the Letter of Credit or the security so deposited, Tenant as the case may be, Tenant, upon demand, shall within ten (10) business days after demand pay or deliver to deposit with Landlord in immediately available funds the sum necessary to replace the amount used, so applied or retainedretained so that Landlord 76 shall have the full deposit on hand at all times during the Term. If Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord Letter of Credit or the security, as provided herein) the case may be, shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal Expiration Date and after delivery of Tenant from the Premises; (iii) the surrender possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale or transfer leasing of Landlord’s interest in the Real Property or the Building, Landlord shall have the right to transfer the SecurityLetter of Credit or security, or balance thereofas the case may be, to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security or the SecurityLetter of Credit, as the case may be, and Tenant shall cause the bank which issued the Letter of Credit to issue an amendment to the Letter of Credit or issue a new Letter of Credit naming the vendee or lessee as the beneficiary thereunder. Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the SecurityLetter of Credit or the security, as the case may be. The provisions hereof shall apply to every transfer or assignment of the Letter of Credit or security made to a new landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives shall renew any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Securityfrom time to time, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its the expiration in thereof, and deliver to Landlord a manner new Letter of Credit or an endorsement to the Letter of Credit, and any other evidence required by Landlord that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date has been renewed for a period of at least one (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.1)
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery As security for the payment of this Lease Note and any and all other liabilities and Obligations of the Borrower to Landlordthe Bank, the Borrower does hereby pledge, assign, transfer and deliver to the Bank and does hereby grant to the Bank a continuing security interest in and to any property of the Borrower of any kind or description, tangible or intangible, now or hereafter assigned, transferred or delivered to or left in or coming into the possession, control or custody of, or in transit to, the Bank or any agent or bailee for the Bank, by or for the account of the Borrower, whether expressly as collateral security or for any other purpose, including, without limitation, all property left with the Letter of Credit (defined below) Bank whether held in a general or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) special account or for the full and faithful performance by Tenant of each and every termsafekeeping or otherwise, provisionall dividends, covenantinterest, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant rights in connection with this Leaseany securities included in said property left with the Bank whether held in a general or special account or for safekeeping or otherwise, all dividends, interest, or other rights in connection with any securities included in said property coming into the possession of the Bank in any way and any property covered by a security agreement signed or assigned by the Borrower in favor of the Bank, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear cash, accounts, inventory, negotiable instruments, documents of title, chattel paper, certificates of deposit, securities, deposit accounts, other cash equivalents and tear), then Landlord may use, applyall other property of whatever description of the Borrower, or any one of them, whether now existing or hereafter acquired, and now or hereafter in the possession or control of or assigned to the Bank, and the products and proceeds therefrom, including the proceeds of insurance thereon; and the additional property of the Borrower, whether no existing or hereafter arising or acquired. All of the aforesaid property and the products and proceeds therefrom, including the proceeds of insurance thereon, are herein collectively called the “Collateral.” The terms used herein to identify the Collateral shall have the respective meanings assigned to such terms in the Illinois Uniform Commercial Code, as in effect from time to time. The cancellation or surrender of this Note, upon payment or otherwise, shall not affect the right of the Bank to retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord Collateral for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderObligations.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Mortgage Note (Lime Energy Co.)
Security. Tenant shall deposit with Landlord on or before the Commencement Date the sum of $3,000,000 (athe “Security Deposit”) Tenant, at in the form of a Letter of Credit (as further set forth in Section 7.2 below) as security for the performance of Tenant’s sole cost covenants and expenseobligations under this Lease. Upon the occurrence of any event of default by Tenant (after notice and the expiration of the applicable cure period), shall provide Landlord, simultaneously with Tenant’s execution Landlord may notify the Issuing Bank (as defined in Section 7.2 below) and delivery thereupon receive all or a portion of this Lease to Landlord, with the Security Deposit represented by the Letter of Credit (defined below) or cash in to the amount extent required to cure such event of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenantdefault, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of such proceeds to the Security for the payment extent necessary to make good any arrears of rent and any Rent not paid when due, for the cost of repairing such other damage, for the cost injury, expense or liability caused by such event of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, default; and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Securitythereupon, Tenant shall within ten (10) business days after pay unto Landlord on demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, so applied in order to restore the security deposit to its original amount. Upon the termination or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions expiration of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over return to Tenant no later than sixty any remaining balance of such deposit within thirty (6030) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender days. Upon a sale of the Premises by Tenant to Landlord in accordance with this Lease; Building or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall Project or any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer financing of Landlord’s interest in the Buildingtherein, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitutevendee or mortgagee. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up With respect to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may , within fifteen (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (1015) business days after notice from Landlord gives Tenant written notice specifying of any such anticipated sale, leasing or financing, Tenant, at Landlord’s sole cost, shall arrange for the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement transfer of the Letter of Credit to the new landlord or mortgagee, as designated by Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall in the foregoing notice, or to have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder reissued in the name of the new landlord or mortgagee. To the extent actually provided to such new landlord or mortgagee by Landlord, Tenant shall be in full force look solely to the new purchaser or mortgagee for the return of such Letter of Credit, and effect continuously until the date (the “L/C Expiration Date”) for return provisions of this Section 7.1 shall apply to every transfer or assignment made of the Security described in Subsection (a) aboveDeposit to a new landlord. No more often than once per yearTenant will not assign or encumber, Landlord shall have the right or attempt to require Tenant to deliver to Landlordassign or encumber, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw , and neither Landlord nor its successors or not extend the Letter of Credit prior to assigns shall be bound by any scheduled annual expiration such actual or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditattempted assignment or encumbrance.
Appears in 1 contract
Sources: Office Building Lease (Premiere Global Services, Inc.)
Security. Tenant has deposited with Kindred a cash sum equal to one monthly installment of Fixed Rent hereunder, as security for (ai) Tenantthe faithful performance and observance by Tenant of the terms, at Tenant’s sole cost provisions and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery conditions of this Lease and (ii) the faithful performance and observance by the applicable tenants and subtenants of the terms, provisions and conditions of each of the Combined Leases (each of the Combined Leases shall be referred to Landlord, with the Letter of Credit (defined below) or cash in the amount singular, as a "Combined Lease"). It is agreed that in the event Tenant or the applicable tenant or subtenant defaults in respect of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaseof the Combined Leases, including, but not limited to, the payment of Rent Rent, Kindred or Lessor or the repair applicable landlord or sublandlord under a Combined Lease may, after notice to Tenant and the expiration of damage any applicable grace period provided for in this Lease or the applicable Combined Lease, as applicable with respect to the Premises caused by Tenant (excluding normal wear and tear)such default, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Landlord Tenant or the tenant or subtenant under the applicable Combined Lease is in default or for any sum which Lessor or the relevant landlord or sublandlord may expend or may be required to expend by reason of Tenant’s failure to perform's or the applicable tenant's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for this Lease or any other loss or damage to Landlord occasioned by Tenant’s failure to performof the Combined Leases, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Leased Property or the facility under the applicable Combined Lease, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Lessor or the amount of landlord or sublandlord under the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this applicable Combined Lease. If Landlord so uses, applies or retains all or part of the SecurityIn any such event, Tenant shall within ten (10) business days after promptly on demand pay or deliver to Landlord in immediately available funds deposit with Lessor so much of the sum necessary to replace security as shall have been so expended so that Lessor shall at all times have the amount used, applied or retainedfull security deposit required hereunder. If In the event that Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security security (except less any amount retained for application by Landlord as provided hereinportion thereof which Lessor is entitled to retain) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of possession of the Leased Property to Landlord Lessor in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord provisions of Section 40.3. Lessor shall hold such security and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds account to Tenant with respect to such security and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled required to pay any interest on the Securitythereon. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord Lessor shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any commingle such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under with any other Article of this Lease, except such notice and cure period expressly provided under this Article Fivefunds.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Operations Transfer Agreement (Kindred Healthcare Inc)
Security. Section 20.1 Tenant has deposited with Landlord the sum of $45,000.00 (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the "Security specified in Section 1.01(13Amount") as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants provisions and conditions of this Lease or lease (such amount, together with any other document executed by interest theretofore earned thereon, if any, being herein called the "Security Deposit"). If Tenant in connection with this Leasedefaults hereunder, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any Rent not paid when due, or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default, and otherwise for compensation of Landlord for including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Premises, whether such loss, damages or deficiency accrue accruing before or after summary proceedings proceedings, or other re-entry by Landlord) and . In the case of every such use, application or retention, Tenant shall, on demand, pay to Landlord the sum so used, applied or retained which shall be replenished to its former amount, so that Landlord shall at all times have a Security Deposit in the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retainedSecurity Amount. If Tenant has shall fully and faithfully performed and observed punctually comply with all of Tenant’s obligations under the terms, provisions, covenants terms and conditions of this Leaselease, then the Security Deposit (except any amount retained for application by Landlord as provided hereinor portion thereof to which Tenant is entitled) shall be returned or paid over to Tenant no later than sixty within forty-five (6045) days after the latest of: (i) the Termination Date; (ii) the removal expiration or termination of Tenant from the Premises; (iii) the surrender this lease and delivery of exclusive possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securityherewith. In the event of any sale, a sale or lease of the Building (or transfer of Landlord’s interest in the Buildingportion thereof containing the Premises), Landlord shall have the right to transfer the Security, or balance thereof, Security Deposit to the vendeevendee or lessee, transferee or lessee and any such transfer Landlord shall release Landlord ipso facto be released by Tenant from all liability for the return of the Security. such Security Deposit and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new Landlord for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.said
Appears in 1 contract
Security. (a) TenantTenant has deposited with Landlord a sum of money (by check, at Tenant’s sole cost and expensesubject to collection) equal to $66,940.00, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Leaselease. If Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, including but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when duerent and additional rent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Tenant is in default, or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal Expiration Date and after delivery of Tenant from the Premises; (iii) the surrender possession of the entire Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. If Landlord applies or retains any part of the security so deposited, Tenant, upon demand, shall deposit with Landlord the amount so applied or retained, so that Landlord shall not be required to keep have the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in full deposit on hand at all times during the term of this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securitylease. In the event of any salea sale of the Land and Building or condominium unit of which the Premises may be a part or leasing, lease conveyance or transfer of Landlord’s interest in the BuildingBuilding or condominium unit of which the Premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, lessee or transferee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(cb) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit lease is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until one year after the date (Commencement Date, Tenant has not paid any fixed rent or additional rent beyond the “L/C Expiration Date”) for return of applicable grace period more than twice during the Security described first lease year and Tenant is not in Subsection (a) above. No more often than once per yeardefault hereunder, Landlord shall have return to Tenant the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter sum of Credit on $31,230.00 in accordance with the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditprovisions hereof.* ARTICLE 47
Appears in 1 contract
Sources: Lease Agreement (Long Distance Direct Holdings Inc)
Security. (a) Tenant8.1 Tenant shall deposit the Security, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlordif any, with Landlord on the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) date hereof as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease. It is agreed that if an Event of Default occurs, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security to the extent required for the payment of any Minimum Rent not paid when dueor additional rent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum as to which Tenant is in Default, or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performsuch Event of Default, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue before accrued before, after or after in the absence of summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. ▇▇▇▇▇▇▇▇.
8.2 If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Expiration Date; (ii) the removal , after delivery of Tenant from the Premises; (iii) the surrender possession of the entire Demised Premises by Tenant to Landlord in accordance with this Lease; as required hereunder, and less any amounts either due and owing Landlord hereunder or (iv) reasonably required to return the date Rent Adjustments owed pursuant Demised Premises to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderthe condition required herein.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. 8.3 In the event of any sale, lease a sale of the Building (with or transfer without the Land) or a leasing of Landlord’s interest the Building in its entirety to a third party subject to the Buildingspace leases therein (a “Building Lessor”), Landlord shall have the right to transfer the Security, or balance thereof, Security to the vendeegrantee or lessee, transferee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the such Security. Tenant thereafter shall ; and ▇▇▇▇▇▇ agrees to look solely to such vendeethe new owner or Building Lessor, transferee or lessee as the case may be, for the return of said Security. It is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the SecuritySecurity to a new Building owner or Building Lessor. The aforementioned provisions shall be self-operative without any further act by Landlord or Tenant necessary to effectuate the same. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security or any interest in itSecurity, and that Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless .
8.4 If Landlord applies or retains all or any portion of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used as may be permitted herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount restore within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with of Landlord’s notice the requirements of this Article Five, amount so applied or retained so that in at all events times during the Letter of Credit required hereunder term hereof the amount deposited with Landlord shall be not less than the amount indicated in full force Article 1, subject to adjustment pursuant to Articles 16 and effect continuously until the date (the “L/C Expiration Date”) for return 35.
8.5 Tenant shall not designate any portion of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw Minimum Rent or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditAdjusted Minimum Rent due hereunder.
Appears in 1 contract
Security. The sum of FOURTEEN THOUSAND NINE HUNDRED FORTY NINE and 92/100 (a$14,949.92) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as DOLLARS representing security (“referred to as " Security”") for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease on Tenant's part to be observed and performed is due and payable at the time of the execution and delivery of this Lease. In the event of any default by Tenant in the observance or performance of any of the terms, covenants or conditions of this Lease on the part of Tenant to be observed or performed including, but not limited to, any default in the payment when due of any monthly installment of the Fixed Rent or increase in the Fixed Rent payable pursuant to the provisions of Articles TWENTY-FIRST or TWENTY-SECOND or of any additional rent, Owner may use or apply all or any part of the Security for the payment to Owner for Tenant's account of any sum or sums due under this Lease, without thereby waiving any other rights or remedies of Owner with respect to such default. Tenant agrees to replenish all or any part of the Security so used or applied during the Demised Term. After (i) the Expiration Date or any other document executed date upon which the Demised Term shall expire and come to an end, and (ii) the full observance and performance by Tenant in connection with of all of the terms, covenants and conditions of this LeaseLease on Tenant's part to be observed and performed, including, but not limited to, the payment provisions of Rent Article EIGHTH, Owner shall return to Tenant the balance of the Security, together with accrued interest thereon, then held or retained by Owner. Owner agrees that, unless prohibited by law or by the repair general policies of damage lending institutions in New York City, Owner shall deposit the Security in an interest-bearing savings account with a bank selected by Owner, in which event all interest accruing thereon shall be added to and become part of the Premises caused Security and shall be retained by Owner under the same conditions as the sum originally deposited as Security. Tenant agrees that Tenant shall not assign or encumber any part of the Security, and no assignment or encumbrance by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole of all or any part of the Security for the payment of any Rent not paid when dueshall be binding upon Owner, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited whether made prior to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such lossduring, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this LeaseDemised Term. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord Owner shall not be required to keep exhaust its remedies against Tenant or against the Security separate from its general funds before having recourse to any other form of security held by Owner and recourse by Owner to any form of security shall not have affect any fiduciary duties or other duties (except as set forth remedies of Owner which are provided in this Article Five) concerning the Security. Tenant shall not be entitled Lease or which are available to any interest on the SecurityOwner in law or equity. In the event of any sale, lease assignment or transfer by Owner named herein (or by any subsequent Owner) of Landlord’s its interest in the BuildingBuilding as owner or lessee, Landlord Owner (or such subsequent owner) shall have the right to assign or transfer the SecuritySecurity to its grantee, assignee or balance thereoftransferee and, in the event of such assignment or transfer, Owner named herein, (or such subsequent Owner) shall have no liability to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability Tenant for the return of the Security. Security and Tenant thereafter shall look solely to the grantee, assignee or transferee for such vendee, transferee or lessee for the return or payment return. A lease of the Security. Tenant entire Building shall not assign or encumber or attempt to assign or encumber be deemed a transfer within the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless meaning of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amountforegoing sentence. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, contrary set forth in the instance foregoing provisions of such substitute Letter of Creditthis Article, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit Owner shall be freely transferable by Landlord, without charge and without recourse, entitled to retain the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1%) year, shall percent administrative fee permitted by law to be “evergreen”, and shall be extended, reissued or replaced retained by Tenant, in each case at least thirty (30) days prior landlords with respect to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditsecurity deposits.
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Sources: Lease (Vizacom Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously Tenant has deposited with Tenant’s execution and delivery Landlord or an irrovable letter of this Lease to Landlord, with the Letter of Credit (defined below) or cash credit from a New York Bank in the amount sum of the Security specified in Section 1.01(13) $49,559.50 as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If ; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Basic Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Additional Charges, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Basic Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of and/or Additional Charges and/or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure 's default in respect to performany of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) end of the removal Lease and after delivery of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any salea sale of the land and building, lease or transfer leasing of Landlord’s interest in the Building, of which the Premises forms a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of such security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new Landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security .
(b) The security deposited pursuant to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, be placed in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while interest bearing account in a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined New York State banking institution having a New York City branch selected by Landlord, subject to Landlord's sole right to change the depository at any time to any banking organization having a place of business in the City of New York, interest earned to become additional security. It is also understood and agreed that interest at 1.0% per annum of the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed security funds shall be retained by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditadministrative fee.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, Section 31.1. Tenant shall provide Landlord, simultaneously deposit with Tenant’s execution and delivery Landlord on the signing of this Lease the sum of the Security Amount for the 1st Security Period, or at Tenant's option, a "clean," unconditional, irrevocable and transferable letter of credit (the "Letter of Credit") in the same amount, satisfactory to Landlord, with the Letter of Credit (defined below) or cash in the amount issued by and drawn on a bank satisfactory to Landlord and which is a member of the Security specified in Section 1.01(13New York Clearing House Association, for the account of Landlord, for a term of not less than one (1) year, as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisionscovenants, covenants conditions and conditions provisions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited towithout limitation, the payment surrender of Rent or the repair possession of damage to the Premises caused by Tenant (excluding normal wear to Landlord as herein provided. If an Event of Default shall occur and tear)be continuing, then Landlord may use, apply, or retain apply the whole or any part of the Security security so deposited, or present the Letter of Credit for payment and apply the whole or any part of the proceeds thereof, as the case may be, (i) toward the payment of any Fixed Rent, Escalation Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other item of Rental as to which Tenant is in default, (ii) toward any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited towithout limitation, any loss of future Rent damage, liability or expense (including, without limitation, reasonable attorneys' fees and disbursements) incurred or suffered by Landlord, and (iii) toward any damage or deficiency incurred or suffered by Landlord in the reletting of the Premises (Premises, whether such loss, damages or deficiency accrue or accrues before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or any part of the Securityproceeds of the Letter of Credit or the security so deposited, Tenant as the case may be, Tenant, upon demand, shall within ten (10) business days after demand pay or deliver to deposit with Landlord in immediately available funds the sum necessary to replace the amount used, so applied or retainedretained so that Landlord shall have the full deposit on hand at all times during the Term. If Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord Letter of Credit or the security, as provided herein) the case may be, shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal Expiration Date and after delivery of Tenant from the Premises; (iii) the surrender possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale or transfer leasing of Landlord’s interest in the Real Property or the Building, Landlord shall have the right to transfer the SecurityLetter of Credit or security, or balance thereofas the case may be, to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such security or the SecurityLetter of Credit, as the case may be, and Tenant shall cause the bank which issued the Letter of Credit to issue an amendment to the Letter of Credit or issue a new Letter of Credit naming the vendee or lessee as the beneficiary thereunder. Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the SecurityLetter of Credit or the security, as the case may be. The provisions hereof shall apply to every transfer or assignment of the Letter of Credit or security made to a new landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives shall renew any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Securityfrom time to time, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its the expiration in thereof, and deliver to Landlord a manner new Letter of Credit or an endorsement to the Letter of Credit, and any other evidence required by Landlord that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date has been renewed for a period of at least one (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.1)
Appears in 1 contract
Sources: Lease Agreement (General Media Inc)
Security. (a) Tenant acknowledges and agrees that security devices and services, if any, while intended to deter crime may not in given instances prevent theft or other criminal acts and that Landlord is not providing any security services with respect to the Premises. Tenant agrees that Landlord shall not be liable to Tenant for, and Tenant waives any claim against Landlord with respect to, any loss by theft or any other damage suffered or incurred by Tenant in connection with any unauthorized entry into the Premises or any other breach of security with respect to the Premises. Tenant shall be solely responsible for the personal safety of Tenant’s officers, employees, agents, contractors, guests and invitees while any such person is in, on or about the Premises and/or the Project. Tenant shall at Tenant’s cost obtain insurance coverage to the extent Tenant desires protection against such criminal acts. Subject to the terms of this Lease, including, without limitation, Tenant’s compliance with the Section 12, Tenant, at Tenant’s sole cost and expense, shall provide Landlordhave the right to install and maintain a Building access control system for the Premises, simultaneously with or security system serving the Premises (“Tenant’s execution Security System”), subject to the following conditions: (i) Tenant’s plans and delivery specifications for the proposed location of this Lease Tenant’s Security System and Tenant’s protocol for the operation of Tenant’s Security System shall be subject to Landlord’s prior written approval, which approval will not be unreasonably withheld, conditioned or delayed; provided, however, that Tenant shall coordinate the installation and operation of Tenant’s Security System with Landlord to assure that Tenant’s Security System may be compatible with the Letter Building’s systems and equipment and Tenant does not violate the reasonable privacy rights of Credit (defined below) or cash in the amount any other occupants of the Security specified in Section 1.01(13Project; (ii) Landlord shall be provided codes and/or access cards, as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenantapplicable, and condition means of this Lease. If Tenant fails timely immediate access to perform (within applicable notice and cure periods) any fully exercise all of its entry rights under the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage respect to the Premises caused by Premises; and (iii) Tenant (excluding normal wear shall be solely responsible, at Tenant’s sole cost and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when dueexpense, for the cost of repairing such damagemonitoring, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason operation and removal of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss Security System. Upon the expiration or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions earlier termination of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized unless otherwise approved by Landlord, Tenant shall immediately deliver to Landlord an amendment remove Tenant’s Security System. All costs and expenses associated with the removal of Tenant’s Security System and the repair of any damage to the Letter Premises and the Building resulting from the installation and/or removal of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, same shall be “evergreen”, and shall be extended, reissued or replaced borne solely by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Codexis, Inc.)
Security. (a) TenantIn the event Tenant deposits with Landlord any Security Deposit, at Tenant’s sole cost and expense, the same shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) be held as security (“Security”) for the full and faithful payment and performance by Tenant of each and every term, provision, covenant, and condition of Tenant's obligations under this Lease. If Tenant fails timely to perform (within defaults beyond any applicable notice and cure periods) period, if any, in the full and prompt payment and performance of any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with its obligations under this Lease, including, but not limited towithout limitation, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)Rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sums as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation 's default in respect of Landlord for any other loss or damage to Landlord occasioned by of Tenant’s failure to perform's obligations under this Lease, including, but not limited towithout limitation, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord shall so usesuse, applies apply or retains all retain the whole or any part of the Securitysecurity, Tenant shall within ten (10) business days after upon demand pay or deliver immediately deposit with Landlord a sum equal to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or and retained, as security as aforesaid. If Tenant has shall fully and faithfully performed pay and observed perform all of Tenant’s 's obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except security or any amount retained for application by Landlord as provided herein) balance thereof to which Tenant is entitled shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal date on which this Lease shall expire or sooner end or terminate, and after delivery to Landlord of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityDemised Premises. In the event of any sale, lease sale or transfer leasing of Landlord’s interest in the BuildingLand, Landlord shall have the right to transfer the Security, or balance thereof, security to which Tenant is entitled to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. or payment thereof; and Tenant thereafter shall look solely to such vendee, transferee or lessee the new landlord for the return or payment of the Securitysame; and the provisions hereof shall apply to every transfer or assignment made of the same to a new landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in itmonies deposited herein as security, and neither Landlord nor its successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
(b) In lieu of all or a portion of the cash security required by this Lease, Tenant shall provide to Landlord an irrevocable transferable Letter of Credit in the amount of the Security Deposit in form and substance satisfactory to Landlord and issued by a financial institution approved by Landlord. Landlord shall have the right, upon written notice to Tenant (except that for Tenant's non-payment of Rent or for Tenant's failure to comply with Article 8.03, no such notice shall be required) and regardless of one the exercise of any other remedy the Landlord may have by reason of a default, to draw upon said Letter of Credit to cure any default of Tenant or more assignments for any purpose authorized by Section 8.01(a) of this Lease and if Landlord does so, Tenant shall, upon demand, additionally fund the Letter of Credit with the amount so drawn so that Landlord shall have the full deposit on hand at all times during the Term of the Lease and for a period of thirty (30) days' thereafter. In the event of a sale of the Building or a lease of the Building subject to this Lease, Landlord may return shall have the Security right to transfer the security to the original Tenant without liability to any assignee. Tenant hereby waives any vendee or lessee, provided such vendee or lessee is bound by all the terms and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute8.02. The Letter of Credit shall provide: expire not earlier than thirty (i30) that Landlord may make partial and multiple draws thereunder, up to days' after the face amount thereof, and that Landlord may draw upon the Letter Expiration Date of Credit up to the full amount thereof, as determined by this Lease. Upon Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes)'s prior consent, the Letter of Credit may be of the type which is automatically renewed on an annual basis (Annual Renewal Date), provided however, in such event Tenant shall be freely transferable by Landlord, without charge maintain the Letter of Credit and without recourse, to its renewals in full force and effect during the assignee entire Term of this Lease (including any renewals or transferee extensions) and for a period of such interest and the Bank shall confirm the same to Landlord and such assignee or transfereethirty (30) days thereafter. The Letter of Credit shall be in will contain a provision requiring the form attached as Exhibit G hereto. The Letter issuer thereof to give the beneficiary (Landlord) sixty (60) days' advance written notice of Credit amount required its intention not to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase renew the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon on the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Fivenext Annual Renewal Date.
8.03. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately fail to deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the substitute irrevocable Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least the amount stated above, on or before thirty (30) days prior to the next Annual Renewal Date, said failure shall be deemed a default under this Lease. Landlord may, in its expiration discretion treat this the same as a default in a manner that fully complies with the requirements payment of this Article FiveRent or any other default and pursue the appropriate remedy. In addition, so that and not in all events limitation, Landlord shall be permitted to draw upon the Letter of Credit required hereunder as in the case of any other default by Tenant under the Lease.
8.04. Provided Tenant is not in default of its obligations under this Lease beyond any applicable notice and/or cure periods, if any, Landlord shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return consent to a reduction of the Security described Deposit in Subsection (a) abovethe amount of $285,000.00 on the second anniversary of the Commencement Date resulting in a total Security Deposit of $250,000.00. No more often than once per yearProvided Tenant is not in default of its obligations under this Lease, Landlord shall have consent to a reduction of the right Security Deposit in the amount of $75,000.00 on the fourth anniversary of the Commencement Date. In the event Landlord has accepted a Letter of Credit in lieu of cash security, such reduction shall be reflected by a reduction in the amount of the Letter of Credit, either by amendment of the Letter of Credit in form and substance reasonably satisfactory to require Tenant to deliver to Landlord, on 15 days prior notice, Landlord or by furnishing of a replacement Letter of Credit on the same terms in form and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer substance reasonably satisfactory to remain as the issuer of the Letter of CreditLandlord. Any advice from the issuer that it intends to withdraw or not extend the In no event however shall any Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditcontain a provision for its automatic reduction.
Appears in 1 contract
Sources: Lease Agreement (Childrens Place Retail Stores Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously 41.01 Tenant has deposited with Tenant’s execution and delivery Landlord the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) 70,000.00 as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions, covenants and every term, provision, covenant, and condition conditions of this Lease. If ; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Leasebeyond applicable notice and cure periods, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear fixed annual rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of fixed annual rent and additional rent or any other sum as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performdefault in respect of any of the terms, provisions, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies The security (or retains all or part of the Security, Tenant shall within ten (10) business days any remaining balance thereof after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided hereinpermitted above) shall be returned or paid over to Tenant no later than within sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale of the Land and Building or transfer leasing of Landlord’s interest in the Building, of which the demised premises form a part, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the Security. such security; and Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee the new landlord for the return of said security; and it is agreed that the provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new landlord. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount applies or retains any portion or all of the Letter of Credit Proceeds so utilized by Landlordsecurity deposited, Tenant shall immediately deliver to Landlord an amendment to forthwith restore the Letter of Credit amount so applied or a replacement Letter of Credit in an amount equal to one hundred percent retained. Said shall “burn-down” so that on the twenty fifth (100%25th) month anniversary of the then-Commencement Date, the required amount security shall be reduced to $50,000.00 and maintained at that level until the expiration of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least within thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per yearsuch 25th month anniversary, Landlord shall have the right return $20,000 to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of CreditTenant.
Appears in 1 contract
Sources: Lease Agreement (Enernoc Inc)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of Tenant will deposit the Security specified in Section 1.01(13) with Landlord as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If It is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)rent, then Landlord may use, apply, apply or retain the whole or any part of the Security to the extent required for the payment of any Rent not paid when due, rent as to which Tenant is in default or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to performdefault in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis Lease, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . To the amount of extent that Landlord, during the unpaid past Rentterm hereof, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or any part of the Security, Tenant shall within ten shall, on demand, promptly restore the Security to its original amount. The Security (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount less any portions thereof used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under retained by Landlord in accordance with the terms, provisions, covenants and conditions provisions of this Lease, the Security (except any amount retained for application by Landlord as provided hereinArticle 5) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: termination date (ior after such other date when the term may expire or be terminated, with out the fault of Tenant, pursuant to the provisions of this Lease or pursuant to law) the Termination Date; (ii) the removal and after delivery of Tenant from the Premises; (iii) the surrender entire possession of the Premises by Tenant to Landlord in accordance with the provisions of this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease a sale or transfer leasing of Landlord’s interest in the Land and Building, Landlord shall have the right to transfer the Security, or balance thereof, Security to the vendee, transferee vendee or lessee and any such transfer Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of such Security, and Tenant agrees to look to the Security. Tenant thereafter shall look new Landlord solely to such vendee, transferee or lessee for the return of said Security. It is agreed that the provisions hereof shall apply to every such transfer or payment assignment made of the Security. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security or any interest in it, and that neither Landlord nor its successors and assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Tangoe Inc)
Security. Upon the termination of the Guarantor's obligations under Section 3 or if the excess of aggregate amount paid by the Guarantor under Section 3 over the aggregate amount reimbursed to it pursuant to Section 10.1(l) of the Management Agreement equals not less than Fifty Million dollars (a) Tenant$50,000,000), at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease HPT will return to Landlord, with the Guarantor any Satisfactory Letter of Credit previously delivered to HPT or any unapplied cash collateral then being held by HPT hereunder and shall direct the Collateral Agent to return any cash being held by it under the Collateral Agency Agreement to the Guarantor. HPT shall be entitled to draw upon any Satisfactory Letter of Credit delivered to it (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”a) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) amount thereof if at any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later time there is less than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner until the expiry date of such Satisfactory Letter of Credit; (b) for the full amount thereof if the bank that fully complies with the requirements of this Article Five, so that in all events the issued such Satisfactory Letter of Credit required hereunder shall be in full force and effect continuously until not have a credit rating of at least A/A2 (or, if after the date (hereof the “L/C Expiration Date”system of ratings used by the Rating Agencies changes in a material way, their then equivalents in HPT's reasonable judgment) for return of from the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Rating Agencies and such satisfactory Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or shall not extend the have been replaced within thirty (30) days with a new Satisfactory Letter of Credit prior delivered to HPT; or (c) to the extent and in the amounts then due and payable hereunder, if the Guarantor shall fail to pay or perform any scheduled annual expiration of its obligations under this Guaranty in accordance with the terms hereof. HPT shall be entitled to apply any cash collateral held by it or the L/C Expiration Date Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment. Any cash collateral held by HPT shall entitle not be commingled with its other funds, and shall be invested, at the Landlord Guarantor's risk, in interest bearing investments reasonably acceptable to immediately draw upon the Letter of CreditGuarantor. Any interest on such cash collateral, and any losses in such investments, shall belong to IHG.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hospitality Properties Trust)
Security. Tenant has deposited with Landlord the sum of $5,234.00 (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s execution and delivery of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13carried over) as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely The depositing of said sum with the Landlord is a condition precedent to perform (within applicable notice and cure periods) any the valid execution of the termsLease. Landlord, provisionsat its option, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited for the payment of any Rent not paid when due, sum for the cost of repairing such damage, which Tenant is in default or for the cost of cleaning the Premises, for the payment of any other sum which Landlord Landlord, at its option, may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation 's default of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) terms and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 conditions of this Lease. If Any expenditures made by Landlord as herein stipulated shall be paid by Tenant as additional rent. Landlord shall be permitted to co-mingle Tenant security funds with other funds of Landlord and shall not be required to pay interest on any sum so uses, applies or retains all or part of held. In the Security, event that Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants terms and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) end of the removal of Tenant from the Premises; (iii) the surrender Lease and after delivery of the Premises by Tenant to Landlord in accordance with pursuant to the terms and conditions of this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer a sale of Landlord’s interest in the BuildingPremises, Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee buyer and any such transfer Landlord shall release Landlord thereupon be relieved by Tenant from all liability for the return of such security and Tenant agrees to look to the Security. Tenant thereafter shall look buyer solely to such vendee, transferee or lessee for the return of said security. The provisions hereof shall apply to every transfer or payment assignment made of the Securitysecurity to a new buyer. Tenant shall further covenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither the Landlord nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.
Appears in 1 contract
Sources: Lease Agreement (Intest Corp)
Security. (a) TenantIt is intended by Lessor and Lessee that the Maintenance Reserves payable to Lessor pursuant to Section 5.4 are amounts paid by Lessee to Lessor in consideration for the use of the Aircraft by Lessee and the satisfaction of Lessee's obligations under this Agreement and that, at Tenant’s sole cost once paid, those monies irrevocably and expenseunconditionally shall be the property of Lessor. Notwithstanding that stated intent, if and to the extent that those monies or any thereof, under any applicable law or otherwise, are determined to be security deposits or otherwise the property of Lessee or if it is so determined those monies are a debt owed to Lessee or that Lessee shall provide Landlordhave any interest in those monies (the "Maintenance Reserve Account"), simultaneously with Tenant’s execution the parties agree that subsections (c), (d) and delivery (e) below shall apply.
(b) It is further intended by Lessor and Lessee that Aircraft Deposit payable by Lessee to Lessor pursuant to Section 5.1 and, if applicable, the Insurance Security Deposit contemplated by the first paragraph of Schedule 4 (collectively the "Deposits") are security deposits to faithfully secure the satisfaction by Lessee of its obligations under the Agreement.
(c) To the fullest extent permitted by law and by way of continuing security, Lessee grants to Lessor a security interest in the Maintenance Reserve Account and the Deposits and all rights of Lessee to payment thereof, the debt represented thereby and/or any and all interest of Lessee therein to Lessor by way of first priority security interest as security for Lessee's obligations and liabilities under this Agreement and the Other Agreements (the "Secured Liabilities"). Except as expressly permitted under Section 7.2 of this Lease Agreement, Lessee will not be entitled to Landlordpayment of the Maintenance Reserve Account. Lessee will not assign, with the Letter transfer or otherwise dispose of Credit (defined below) all or cash part of its rights in the amount of Maintenance Reserve Account or the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenantDeposits, and condition Lessee agrees that it will enter into any additional documents and instruments necessary or reasonably requested by Lessor to evidence, create or perfect Lessor's rights to the Maintenance Reserve Account and the Deposits.
(d) If Lessee fails to comply with any provision of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease Agreement or any other document executed by Tenant in connection with this LeaseEvent of Default has occurred and is continuing Lessor may immediately or at any time thereafter, including, but not limited to, the payment of Rent or the repair of damage without prior notice to the Premises caused by Tenant Lessee:
(excluding normal wear and tear), then Landlord may use, apply, or retain the whole i) Set-off all or any part of the Security for Secured Liabilities against the payment liabilities of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency Lessor in the reletting respect of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and Maintenance Reserve Account and/or the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; Deposits;
(ii) Apply or appropriate the removal of Tenant from Maintenance Reserve Account and/or the Premises; (iii) Deposits in or towards the surrender payment or discharge of the Premises by Tenant to Landlord Secured Liabilities in accordance with this Leasesuch order as Lessor sees fit; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.and
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(ce) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
Lessor has exercised the set-off described in sub-clause (d) As used hereinabove, “Letter of Credit” shall mean an unconditionalLessee shall, irrevocable sight draft letter of credit issuedfollowing a demand in writing from Lessor, presentable and payable promptly restore the Maintenance Reserve Account and/or the Deposits to the level at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, which they stood immediately prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the thenset-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditoff.
Appears in 1 contract
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s Section 33.01. Upon the execution and delivery of this Lease to LandlordLease, Tenant shall deposit with the Letter of Credit (defined below) or cash in the amount of Landlord the Security specified in Section 1.01(13) Deposit Amount, as security (“Security”) for the full and faithful performance and observance by Tenant of each all of the covenants, agreements, terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) agrees that, if Tenant shall default in respect of any of the covenants, agreements, terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Lease(beyond notice and the expiration of the applicable cure period, including, but not limited to, if any) including the payment of the Fixed Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security security being held by Landlord (the "Security") to the extent required for the payment of any Fixed Rent not paid when dueand additional rent, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of or any other sum payments as to which Tenant shall be in default or for any monies which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the covenants, agreements, terms, provisions and otherwise for compensation conditions of Landlord for this Lease, including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (Demised Premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and . Notwithstanding the amount of foregoing sentence, however, Landlord shall not use, apply or retain the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies whole or retains all or any part of the SecuritySecurity if Tenant's default (i) is non-monetary and (ii) arises from strikes, lock-outs or labor problems, governmental preemption, or by reason of any Legal Requirements, or by reason of the conditions of supply and demand which have been or shall be affected by war or other emergency or general market conditions or otherwise; provided, however, that Tenant shall use its best efforts and diligently pursue to completion the curing of such default. Landlord shall not be required to so use, apply or retain the whole or any part of the Security so deposited, but if the whole or any part thereof shall be so used, applied or retained, then Tenant shall, within ten (10) business days after demand pay or deliver therefor deposit with Landlord an amount in cash equal to Landlord in immediately available funds the sum necessary to replace the amount so used, applied or retained, so that Landlord shall have the entire Security on hand at all times during the Term. If In the event that Tenant has shall fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants covenants, agreements and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty within thirty (6030) days after the latest of: (i) the Termination Date; (ii) the removal Expiration Date or earlier termination of Tenant from the Premises; (iii) the surrender this Lease as provided herein and delivery of exclusive possession of the Demised Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease making or transfer assignment of Landlord’s interest in any Underlying Lease or upon a conveyance of the Building, : (i) Landlord shall have the right to transfer the Security, or balance thereof, Security to the vendee, transferee assignee or lessee and any such transfer or transferee, (ii) Landlord shall release Landlord thereupon be released by Tenant from all liability for the return of the such Security. , and (iii) Tenant thereafter shall agrees to look solely to such vendee, transferee or lessee Landlord's successor for the return of said Security provided that Tenant has received notice thereof, it being agreed that the provisions hereof shall apply to every transfer or payment assignment made of the SecuritySecurity to a new Landlord. Tenant shall further covenants that Tenant will not assign or encumber or attempt to assign or encumber the Security or any interest in itmonies deposited herein as Security, and that neither Landlord nor Landlord's successors or assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, .
Section 33.02. Landlord may return agrees to place the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Lawin an interest- bearing account, now and, unless disbursed or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default applied by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, provided in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes)Section 33.01 above, the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty earned thereon (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in less an amount equal to one hundred percent (1001%) percent of the then-required amount Security, which may be retained by Landlord each year as compensation for management and administration of said account) shall be disbursed annually to Tenant when Landlord shall generally make such distributions to tenants in the Building, but only if Tenant shall not be in default with respect to any of Tenant's obligations under this Lease beyond notice and the expiration of the applicable cure period, if any.
A. Notwithstanding anything to the contrary contained in Section 33.01 above, in lieu of a cash security deposit, Tenant may deliver to Landlord a clean, irrevocable, transferable and unconditional letter of credit (the "Letter of Credit. Tenant’s failure ") issued by and drawn upon a commercial bank (hereinafter referred to deliver such amendment or replacement as the "Issuing Bank") which shall be a member bank of the New York Clearinghouse Association (or, in the alternative, which shall have offices for banking purposes in the Borough of Manhattan and shall have a net worth of not less than $100,000,000, with reasonably appropriate evidence thereof to be submitted by Tenant), which Letter of Credit to Landlord within ten shall: (10i) business days after Landlord’s notice shall constitute have a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer not less than one (1) year, (ii) contain the same substance and be in materially the same form annexed hereto as Exhibit "G," (iii) be for the account of Landlord, (iv) be in the amount of $70,950.00, (v) except as otherwise provided in this Section 33.03, conform and be subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500 (or any revision thereof or successor thereto), (vi) be fully transferable by Landlord without any fees or charges therefor (or, if the Letter of Credit shall provide for the payment of any transfer fees or charges, the same shall be “evergreen”paid by Tenant as and when such payment shall be requested by the Issuing Bank), (vii) provide that Landlord shall be entitled to draw upon the Letter of Credit upon presentation to the Issuing Bank of a sight draft accompanied by Landlord's statement that Landlord is then entitled to draw upon the Letter of Credit pursuant to the terms of this Lease, and (viii) provide that the Letter of Credit shall be extendeddeemed automatically renewed, reissued or replaced by Tenantwithout amendment, in for consecutive periods of one (1) year each case at least year thereafter during the entire Term of this Lease and for a period of thirty (30) days prior thereafter, unless the Issuing Bank shall send notice (the "Non-Renewal Notice") to its Landlord by certified or registered mail, return receipt requested, not less than forty-five (45) days next preceding the then expiration in a manner that fully complies with the requirements date of this Article Five, so that in all events the Letter of Credit required hereunder that the Issuing Bank elects not to renew such Letter of Credit, in which case Landlord shall have the right, by sight draft on the Issuing Bank, to receive the monies represented by the then existing Letter of Credit, and to hold and/or disburse such proceeds pursuant to the terms of Section 33.01 above as cash security. If Landlord shall fail, for any reason whatsoever, to draw upon the Letter of Credit within said forty-five (45) day period, and the Letter of Credit shall expire prior to the thirtieth (30th) day following the Expiration Date of the Term of this Lease, then Tenant shall within five (5) days after demand therefor deposit with Landlord the Security Deposit Amount in cash or furnish Landlord with a replacement Letter of Credit (which shall comply with all of the conditions set forth in the immediately preceding sentence), so that Landlord shall have the entire Security on hand at all times during the Term and for a period of thirty (30) days thereafter. Tenant acknowledges and agrees that the Letter of Credit shall be in full force delivered to Landlord as security for the faithful performance and effect continuously until the date (the “L/C Expiration Date”) for return observance by Tenant of all of the Security described in Subsection (a) above. No more often than once per yearcovenants, agreements, terms, provisions and conditions of this Lease, and that Landlord shall have the right to require draw upon the entire Letter of Credit in any instance in which Landlord would have the right to use, apply or retain the whole or any part of any cash security deposited with Landlord pursuant to Section 33.01 above. If Landlord shall draw upon the entire Letter of Credit and such amount shall be greater than that required for the payments referred to in the first sentence of Section 33.01 hereof, the balance of any amounts received by Landlord pursuant to drawing upon such Letter of Credit shall be held by Landlord as a cash security deposit in accordance with the provisions of this Section 33.
B. In the event that Tenant shall elect to deliver furnish the Letter of Credit in lieu of cash security: (i) all references to "Security" in Section 33.01 above shall be deemed to refer to the Letter of Credit, or any proceeds thereof as may be drawn upon by Landlord, on 15 days prior noticeand (ii) the provisions of Section 33.02 above shall apply only to such Letter of Credit proceeds (if any) as may be drawn and held by Landlord.
C. Landlord agrees that, a replacement provided that the conditions set forth below shall be satisfied, Tenant shall be permitted to (i) reduce the amount of said Letter of Credit on the same terms third (3rd) anniversary of the Commencement Date to $47,300 (with such anniversary date being referred to as the "Reduction Date", and conditions set forth in this Article Fivesuch reduction being referred to as the "Permitted Reduction"), or (ii) in the event that Landlord determines, shall then be holding cash security in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer lieu of the a Letter of Credit, to receive a refund on or after the third (3rd) anniversary of the Commencement Date, in an amount equal to the difference between the amount of cash security then being held by Landlord and $47,300, if any. Any advice from Landlord shall have no obligation to refund any portion of the issuer that it intends cash security until thirty (30) days following Landlord's receipt of a written notice requesting such refund (the "Security Refund Notice"). Landlord agrees that, if and to withdraw the extent Landlord's cooperation shall be required in order to facilitate a Permitted Reduction, Landlord will, at Tenant's request, but at no cost or not extend expense to Landlord, cooperate with Tenant in all reasonable respects to cause such Permitted Reduction to occur. Tenant shall only have the right to reduce the Letter of Credit prior or to receive such refund as aforesaid provided that on the Reduction Date or the date upon which Landlord shall receive the Security Refund Notice (x) Tenant shall not then be in default (after notice and the expiration of the applicable cure period) with respect to any scheduled annual of Tenant's non-monetary obligations under this Lease (a "Non-Monetary Default") and (y) Tenant shall not be in default with respect to any of Tenant's monetary obligations under this Lease after notice and the expiration of the applicable cure period, if any (a "Monetary Default"); it being agreed, however, that following Tenant's cure of such Non-Monetary Default or Monetary Default, as the L/C Expiration Date case may be, Tenant shall entitle the Landlord be permitted to immediately draw upon reduce the Letter of CreditCredit or receive such refund as aforesaid.
Appears in 1 contract
Sources: Lease (CTC Communications Corp)
Security. (aSupplementing Article 34) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously --------
65.01 Tenant has deposited with Tenant’s execution and delivery Landlord the sum of this Lease to Landlord, with ("the "Security") either in cash or by Letter of Credit as provided in Section 65.02, as security for the faithful performance and observance by tenant of the terms, provisions and conditions of this lease. Landlord agrees that in the event Tenant deposits a cash security as aforesaid, Landlord shall maintain said cash security in an interest bearing account, in a bank or savings and loan association to be selected, from time to time, by Landlord in its sole discretion which account shall be insured by the Federal Deposit Insurance Corporation, so long as such insurance shall be available, and all interest earned thereon (defined except with respect to Landlord's administrative expense as set forth below) shall be retained in such account and be deemed added to the cash security deposited hereunder or upon request of Tenant be delivered to Tenant annually within twenty (20) days after such request. Landlord agrees further to hold the said cash security in such an account for the entire term hereof, subject, however, to the terms of this Article 65 with respect to the application of the security in the amount event of Tenant's default hereunder. To the extent permitted by law, Tenant agrees that Landlord shall be entitled to receive and retain per such sum from time to time as Landlord shall determine, in its sole discretion. Landlord shall not be required to credit any of the Security specified cash security with interest for any period during which Landlord does not receive interest thereon. It is agreed that in Section 1.01(13) as security (“Security”) for the full and faithful performance by event Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable defaults after notice and the expiration of any applicable cure periods) period hereunder, in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord may use, apply, apply or retain the whole or any part of the Security cash security so deposited and any interest thereon then held by Landlord, or Landlord may notify the "Issuing Bank" (as such term is defined in Section 65.02) and thereupon receive all of the monies represented by the said Letter of Credit and use, apply or retain the whole or any part of such proceeds, as the case may be, to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Tenant is in default, after notice and any cure period provided herein, or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform's default after notice and the expiration of any applicable cure period hereunder, in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) . In the event that Landlord applies or retains any portion or all of such cash security and interest held thereon, or proceeds of such Letter of Credit, as the case may be, Tenant shall forthwith restore the amount so applied or retained so that at all times, the amount deposited shall be equal to the Security plus the amount of any interest held thereon immediately prior to such application or retention in the unpaid past Rent, future Rent loss, and all other losses, costs and damages event of a cash security deposit. In the event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except cash security and any amount retained for application interest thereon then held by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kindLandlord, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in it, and Landlord shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender as the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord case may make partial and multiple draws thereunderbe, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased returned to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty fifteen (2015) days following written demand by the date fixed as the end of the lease and after delivery of entire possession of the Demised Premises to Landlord.
65.02 In lieu of a cash deposit, Tenant may deliver to Landlord shall constitute a Default by Tenant under this Leaseclean, irrevocable and in addition shall entitle Landlord unconditional letter of credit (hereinafter referred to draw upon as the "Letter of Credit. Landlord may (but ") which shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right be issued by and drawn upon any commercial bank (hereinafter referred to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Credit.the
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously 34. Tenant has deposited with Tenant’s execution and delivery Owner the sum of this Lease to Landlord, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) [HAND GRAPHIC] $ _____ as security (“Security”) for the full and faithful performance and observance by Tenant of each the terms, provisions and every term, provision, covenant, and condition conditions of this Lease. If lease; it is agreed that in the event Tenant fails timely to perform (within applicable notice and cure periods) defaults in respect of any of the terms, provisions, covenants provisions and conditions of this Lease or any other document executed by Tenant in connection with this Leaselease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear rent and tear)additional rent, then Landlord Owner may use, apply, apply or retain the whole or any part of the Security security so deposited to the extent required for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of rent and additional rent or any other sum as to which Landlord Tenant is in default or for any sum which Owner may expend or may be required to expend by reason of Tenant’s failure to perform's default in respect of any of the terms, covenants and otherwise for compensation conditions of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to performthis lease, including, including but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting re-letting of the Premises (premises, whether such loss, damages or deficiency accrue accrued before or after summary proceedings or other re-entry by Landlord) and Owner. In the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages event that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed comply with all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Leaselease, the Security (except any amount retained for application by Landlord as provided herein) security shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) date fixed as the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender end of the Premises by Tenant Lease and after delivery of entire possession of the demised premises to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the SecurityOwner. In the event of any salea sale of the land and building or leasing of the building, lease or transfer of Landlord’s interest in which the Buildingdemised premises form a part, Landlord Owner shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee vendee or lessee and any such transfer Owner shall thereupon be release Landlord by Tenant from all liability for the return of said security, and it is agreed that the Securityprovisions hereof shall apply to every transfer or assignment made of the security to a new Owner. Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall further convenants that it will not assign or encumber or attempt to assign or encumber the Security monies deposited herein as security and that neither Owner nor its successors or any interest in it, and Landlord assigns shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Estoppel Certificate: 35. Tenant, at any time, and regardless of one or more assignments of this Leasefrom time to time, Landlord may return the Security upon at least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to the original Tenant without liability Owner, and/or to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Lawother person, now firm or hereafter enactedcorporation specified by Owner, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under statement certifying that this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice is unmodified and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per yearor, Landlord shall if there have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgmentbeen modifications, that the issuing Bank same is no longer satisfactory in full force and effect as modified and starting the modifications), stating the dates to remain as which the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw rent and additional rent have been paid, and stating whether or not extend the Letter of Credit prior to there exists any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditdefault by Owner under this Lease, and, if so, specifying each such default.
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Tenant hereby deposits the sum of $20,000.00 with the Landlord, simultaneously with Tenant’s execution and delivery receipt of this Lease to Landlordwhich is hereby acknowledged, with the Letter of Credit (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant the tenant of each and every term, provision, covenant, covenant and condition of this Lease. If In the event that the Tenant fails timely defaults in respect to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, including but not limited toto payment of rent and additional rent, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may use, apply, apply or retain the whole or any part of the Security security so deposited for the payment of any Rent not paid when due, rent and additional rent in default or for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which the Landlord may expend or may be required to expend by reason of the Tenant’s failure to performdefault, and otherwise for compensation of Landlord for including any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage damages or deficiency in the reletting of the Premises (premises, whether such loss, damages damage or deficiency accrue before or after summary proceedings or other re-entry by the Landlord) and . In the amount of event that the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under comply with the terms, provisions, covenants and conditions of this Lease, the Security (except security or any amount retained for application by Landlord as provided herein) balance thereof shall be returned or paid over to the Tenant no later than sixty (60) days after the latest of: (i) the Termination Expiration Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Securityaforesaid security. In the absence of evidence satisfactory to the Landlord of any assignment of the right to receive the security, or the remaining balance thereof, the Landlord may return the security to the original Tenant, regardless of one or more assignments of the Lease itself. In the event of any sale, lease or a bona fide transfer of the Landlord’s interest in under the BuildingMaster Lease, the Landlord shall have the right to transfer the Security, or balance thereof, security to the vendee, transferee or lessee thereof for the benefit of the Tenant and any such transfer Landlord shall release Landlord be considered released by the Tenant from all liability for the return of such security; and the Security. Tenant thereafter shall agrees to look to the new landlord solely to such vendee, transferee or lessee for the return or payment of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security or any interest in itsaid security, and Landlord it is agreed that this shall apply to every transfer or assignment made of the security to a new landlord. The security deposited under this lease shall not be bound mortgaged, assigned or encumbered by the Tenant without the written consent of the Landlord. The issuance of a warrant and the re-entering of said premises by the Landlord for any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless default on the part of one or more assignments of this Lease, Landlord may return the Security Tenant prior to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but Expiration Date shall not be required to) draw upon deemed such a termination of this Lease as to entitle the Letter of Credit and use Tenant to the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount recovery of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditsaid security.
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Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide LandlordTenant has, simultaneously with Tenant’s the execution and delivery of this Lease to Landlordhereof, deposited with the Letter of Credit (defined below) or cash in the amount of Landlord the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance and observance by Tenant of each and every term, provision, covenant, and condition the terms of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear), then Landlord may retain, use, apply, or retain apply the whole or any part of the Security to the extent required for the payment of any: (i) Rent; (ii) loss or damage that Landlord may suffer by reason of an Event of Default by Tenant including, without limitation, any Rent not paid when due, for damages incurred by Landlord or deficiency resulting from the cost re-letting of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue accrues before or after summary proceedings or other re-entry reentry by Landlord; (iii) and costs incurred by Landlord in connection with the amount cleaning or repair of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 Premises upon expiration or earlier termination of this Lease. Landlord shall not be obligated to apply the Security and the Landlord's right to bring an action or special proceeding to recover damages or otherwise to obtain possession of the Premises before or after Landlord's declaration of the termination of this Lease for nonpayment of Rent or for any other reason shall not be affected by reason of the fact that Landlord holds the Security. The Security will not be a limitation on the Landlord's damages or other rights and remedies available under this Lease, or at law or equity; nor shall the Security be a payment of liquidated damages or advance of the Rent or any component thereof.
(b) If Landlord so uses, applies applies, or retains all or part any portion of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, will restore the Security (except any to its original amount retained for application by Landlord as provided herein) immediately upon written demand from Landlord. Tenant's failure to strictly comply with this requirement shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal an Event of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunderDefault.
(bc) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure Subject to applicable Legal Requirements and requirements of Landlord’s damages 's lender(s), Landlord may commingle the Security with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlordown funds. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties in an interest-bearing account. Upon expiration or other duties (except as set forth in this Article Five) concerning earlier termination of the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the BuildingLease, Landlord shall have will return the right to transfer the Security, or balance thereof, Security to the vendee, transferee or lessee then current Tenant and any such transfer Landlord shall release Landlord be deemed released by Tenant from all liability for the return of the Security. If any part of Landlord's property of which the Premises forms a part is sold, leased or otherwise legally transferred (including to a mortgagee upon foreclosure of its mortgage), Landlord shall transfer the Security to the successor entity, and, upon such transfer, Landlord shall be deemed released by Tenant thereafter from all liability for the return of the Security; and Tenant shall look solely to such vendee, transferee or lessee the Landlord's successor for the return or payment of the Security. Tenant .
(d) The Security shall not assign be mortgaged, assigned, or encumber or attempt to assign or encumber the Security or any interest in itencumbered by Tenant, and neither Landlord nor its successors or assigns shall not be bound by any such assignmentmortgage, encumbrance, attempted assignment or attempted encumbrance.
(e) If Tenant fully and faithfully complies with all of the terms, covenants, conditions and regardless of one or more assignments provisions of this Lease, Landlord may return shall, within sixty (60) days after the Security later of the Expiration Date and the date of surrender of possession of the Premises to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of Landlord in accordance with this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at return to Tenant the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant or such portion thereof as shall have delivered to Landlord then remain, less an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face estimated amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement due for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditunpaid Operating Expense Payment and/or Tax Payment.
Appears in 1 contract
Sources: Lease Agreement (AxoGen, Inc.)
Security. (a) Tenant, at Tenant’s sole cost and expense, shall provide Landlord, simultaneously with Tenant’s Upon execution and delivery of this Lease to LandlordSublease, with the Letter of Credit Sublessor shall tender Fourteen Thousand Two Hundred Ninety-Eight and 21/100 Dollars (defined below) or cash in the amount of the Security specified in Section 1.01(13) as security (“Security”) for the full and faithful performance by Tenant of each and every term, provision, covenant, and condition of this Lease. If Tenant fails timely to perform (within applicable notice and cure periods) any of the terms, provisions, covenants and conditions of this Lease or any other document executed by Tenant in connection with this Lease, including, but not limited to, the payment of Rent or the repair of damage to the Premises caused by Tenant (excluding normal wear and tear$14,298.21), then Landlord may use, apply, or retain the whole or any part of the Security for the payment of any Rent not paid when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the payment of any other sum which Landlord may expend or may be required to expend by reason of Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any loss of future Rent and any damage or deficiency in the reletting of the Premises (whether such loss, damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and damages that Landlord would be entitled to recover if Landlord were to pursue recovery under Section 11.02 of this Lease. If Landlord so uses, applies or retains all or part of the Security, Tenant shall within ten (10) business days after demand pay or deliver to Landlord in immediately available funds the sum necessary to replace the amount used, applied or retained. If Tenant has fully and faithfully performed and observed all of Tenant’s obligations under the terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained for application by Landlord as provided herein) shall be returned or paid over to Tenant no later than sixty (60) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as an admission by Landlord that Tenant has performed all of its obligations hereunder.
(b) The Security shall not be deemed an advance Rent deposit or an advance payment of any kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any action or inaction of Landlord with respect to it or its use or application be a waiver of, or bar or defense to, enforcement of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate from its general funds and shall not have any fiduciary duties or other duties (except as set forth in this Article Five) concerning the Security. Tenant shall not be entitled to any interest on the Security. In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord Sublessor shall have the right to transfer retain as security for Sublessee’s faithful performance of all covenants, conditions and agreements of this Sublease, but in no event shall the SecuritySublessor be obligated to apply the same upon rents or other charges in arrears or upon damages for the Sublessee’s failure to perform the said covenants, or balance thereofconditions and agreements, except as required by law; the Sublessor may so apply the security, at its option, and the Sublessor’s right to the vendee, transferee or lessee and any such transfer shall release Landlord from all liability for the return possession of the Security. Tenant thereafter shall look solely to such vendee, transferee or lessee Demised Premises for the return or non-payment of the Security. Tenant rent or for any other reason shall not assign in any event be affected by reason of the fact that the Sublessor holds this security. The said sum, if not applied toward the payment of rent in arrears or encumber or attempt toward the payment of damages suffered by the Sublessor by reason of the Sublessee’s breach of the covenants, conditions and agreements of this Sublease, is to assign or encumber be returned to the Security or any Sublessee without interest in itwhen this Sublease is terminated, according to these terms, and Landlord in no event is the said security to be returned until the Sublessee has vacated the Demised Premises and delivered possession to the Sublessor. If the Sublessor repossesses itself of the Demised Premises because of the Sublessee’s default or because of the Sublessee’s failure to carry out the covenants, conditions and agreements of this Sublease, the Sublessor may apply the said security toward all damages suffered to the date of said repossession and may retain the said security to apply toward such damages as may be suffered or shall accrue thereafter by reason of the Sublessee’s default or breach. The Sublessor shall not be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance, and regardless of one or more assignments of this Lease, Landlord may return obligated to keep the Security to the original Tenant without liability to any assignee. Tenant hereby waives any and all rights of Tenant under the provisions of Law, now or hereafter enacted, regarding said security deposits.
(c) If Tenant fails timely to perform any obligation under this Article Five, such breach shall constitute as a Default by Tenant under this Lease without any right to or requirement of any further notice or cure period under any other Article of this Lease, except such notice and cure period expressly provided under this Article Five.
(d) As used herein, “Letter of Credit” shall mean an unconditional, irrevocable sight draft letter of credit issued, presentable and payable at the office of a major national bank satisfactory to Landlord in its reasonable discretion (the “Bank”), naming Landlord as beneficiary, in an amount equal to $1,084,479.58 and, prior to any Reduction (defined below) while a Letter of Credit is serving as Security, Tenant shall have delivered to Landlord an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Notwithstanding anything to the contrary, Landlord hereby approves of Comerica Bank as the Bank. Landlord agrees, in the instance of such substitute Letter of Credit, to surrender the replaced Letter of Credit promptly after receipt of the substitute. The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, and that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord without requirement for any additional documents or statements by Landlord; and (ii) that, in the event of assignment or other transfer of either Landlord’s interest in this Lease or of any interest in Landlord (including, without limitation, consolidations, mergers, reorganizations or other entity changes), the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse, to the assignee or transferee of such interest and the Bank shall confirm the same to Landlord and such assignee or transferee. The Letter of Credit shall be in the form attached as Exhibit G hereto. The Letter of Credit amount required to be maintained hereunder shall be increased proportionately for any space leased to Tenant pursuant to the Offer Right. Tenant’s failure to so increase the Letter of Credit amount within twenty (20) days following written demand by Landlord shall constitute a Default by Tenant under this Lease, and in addition shall entitle Landlord to draw upon the Letter of Credit. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the “Letter of Credit Proceeds”) or any portion thereof in any manner Landlord is permitted to use the Security under this Article Five. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Leaseseparate fund, but to use may commingle the Letter of Credit Proceeds, then within ten (10) business days after Landlord gives Tenant written notice specifying the amount of the Letter of Credit Proceeds so utilized by Landlord, Tenant shall immediately deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the then-required amount of the Letter of Credit. Tenant’s failure to deliver such amendment or replacement of the Letter of Credit to Landlord within ten (10) business days after Landlord’s notice shall constitute a Default by Tenant under this Lease. The Letter of Credit shall have an initial term of no longer than one (1) year, shall be “evergreen”, and shall be extended, reissued or replaced by Tenant, in each case at least thirty (30) days prior to said security with its expiration in a manner that fully complies with the requirements of this Article Five, so that in all events the Letter of Credit required hereunder shall be in full force and effect continuously until the date (the “L/C Expiration Date”) for return of the Security described in Subsection (a) above. No more often than once per year, Landlord shall have the right to require Tenant to deliver to Landlord, on 15 days prior notice, a replacement Letter of Credit on the same terms and conditions set forth in this Article Five, in the event that Landlord determines, in its good faith judgment, that the issuing Bank is no longer satisfactory to remain as the issuer of the Letter of Credit. Any advice from the issuer that it intends to withdraw or not extend the Letter of Credit prior to any scheduled annual expiration or the L/C Expiration Date shall entitle the Landlord to immediately draw upon the Letter of Creditown funds.
Appears in 1 contract
Sources: Sublease (Vie Financial Group Inc)