SECURITY DEPOSIT Upon execution of this Lease, Tenant shall deposit with Landlord the amount of the Security Deposit specified on [Page One], of this Lease. The Security Deposit will be returned to Tenant without interest upon the expiration of the Term of the Lease, provided that Xxxxxx has paid all amounts due under this Lease and has otherwise performed all obligations hereunder. In the event that Tenant defaults under any provision of this Lease, and after the expiration of any applicable cure period, Landlord may apply all, or any part of the Security Deposit to amounts owed by Tenant. In the event Landlord elects to apply the Security Deposit as provided for above, Tenant shall promptly restore such Security Deposit to the original amount. Landlord may, at its discretion, commingle such funds with its other funds, Upon any sale or other conveyance of the Building, Landlord may transfer the Security Deposit (or any amount of the Security Deposit remaining) to a successor/owner, and Xxxxxx agrees to look solely at the successor/owner for repayment of the same. Notwithstanding anything to the contrary in the paragraph above, in lieu of a cash Security Deposit, Tenant may deliver the Security Deposit in the form of an unconditional, clean, irrevocable standby letter of credit, in a form acceptable to Landlord, and issued by a bank reasonably acceptable to Landlord (the “Letter of Credit”) as security, provided the Letter of Credit shall be delivered to Landlord with executed copies of this Lease. The Letter of Credit shall (i) be unconditional, irrevocable, transferable, payable to Tenant upon presentment of original to the issuer in person or by courier, in partial or full draws, and (ii) contain an “evergreen” provision which provides that it is automatically renewed on an annual basis (subject to the permitted date of termination set forth below) unless the issuer delivers thirty (30) days’ prior written notice of cancellation to Landlord and Tenant. Without limiting any of Landlord’s rights or remedies hereunder, if the bank issuing the Letter of Credit provides Landlord with a cancellation notice, Landlord may immediately draw upon all or any part of the Letter of Credit and Tenant shall provide Landlord with an additional irrevocable stand-by letter of credit as provided below. Any and all fees or costs charged by the issuer in connection with the Letter of Credit shall be paid by Xxxxxx. The irrevocable stand-by Letter of Credit shall remain effective through the date that is sixty (60) days following the expiration date this Lease. If Tenant defaults with respect to any provision of this Lease beyond applicable notice and cure periods, including but not limited to the provisions relating to the payment of Rent, Landlord may draw upon all or any part of Tenant’s Letter of Credit. If any portion of the Security Deposit is so used, applied, or retained, Tenant will within ten (10) days after written demand from Landlord, provide to Landlord an additional irrevocable, stand-by letter of credit, which shall be in form and substance satisfactory to Landlord, issued by a bank reasonably acceptable to Landlord, in an amount sufficient to restore the Security Deposit to its required amount pursuant to this Section 8. Tenant’s failure to replenish the Security Deposit shall constitute a failure to pay Additional Rent and Tenant shall have ten (10) days from the date of notice to cure such default.
Form of Security Any Security issued hereunder shall be in substantially the following form: DESERT CAPITAL REIT, INC. Junior Subordinated Note due 2036 No. _____________ $ ____________ Desert Capital REIT, Inc., a corporation organized and existing under the laws of Maryland (hereinafter called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to JPMorgan Chase Bank, National Association, not in its individual capacity, but solely as Property Trustee for Desert Capital TRS Statutory Trust I, or registered assigns, the principal sum of Thirty Million Nine Hundred Twenty Eight Thousand Dollars ($30,928,000) [if the Security is a Global Security, then insert— or such other principal amount represented hereby as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture] on July 30, 2036. The Company further promises to pay interest on said principal sum from June 16, 2006, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly in arrears on January 30, April 30, July 30 and October 30 of each year, commencing July 30, 2006, or if any such day is not a Business Day, on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date until such next succeeding Business Day), except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on the Interest Payment Date, at a variable rate equal to LIBOR plus 4.00% per annum, together with Additional Tax Sums, if any, as provided in Section 10.5 of the Indenture, until the principal hereof is paid or duly provided for or made available for payment; provided, further, that any overdue principal, premium, if any, or Additional Tax Sums and any overdue installment of interest shall bear Additional Interest at a variable rate equal to LIBOR plus 4.00% per annum (to the extent that the payment of such interest shall be legally enforceable), compounded quarterly, from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The amount of interest payable for any period shall be computed on the basis of a 360-day year and the actual number of days elapsed in the relevant Distribution period. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than ten (10) days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Payment of principal of, premium, if any, and interest on this Security shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Payments of principal, premium, if any, and interest due at the Maturity of this Security shall be made at the Place of Payment upon surrender of such Securities to the Paying Agent, and payments of interest shall be made, subject to such surrender where applicable, by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Paying Agent at least ten (10) Business Days prior to the date for payment by the Person entitled thereto unless proper written transfer instructions have not been received by the relevant record date, in which case such payments shall be made by check mailed to the address of such Person as such address shall appear in the Security Register. Notwithstanding the foregoing, so long as the Holder of this Security is the Property Trustee, the payment of the principal of (and premium, if any) and interest (including any overdue installment of interest and Additional Tax Sums, if any) on this Security will be made at such place and to such account as may be designated by the Property Trustee. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
