CORPORATE SEPARATENESS,
AND THE MAINTENANCE OF ITS SINGLE PURPOSE, BANKRUPTCY REMOTE ENTITY STATUS.
(O)
EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED
TO THE CONTRARY IN THIS LEASE, NO FAILURE OF LANDLORD OR TENANT (I) TO INSIST AT
ANY TIME UPON THE STRICT PERFORMANCE OF ANY PROVISION OF THIS LEASE OR (II) TO
EXERCISE ANY OPTION, RIGHT, POWER OR REMEDY CONTAINED IN THIS LEASE SHALL BE
CONSTRUED AS A WAIVER, MODIFICATION OR RELINQUISHMENT THEREOF ; PROVIDED THAT
NOTHING HEREIN IS INTENDED TO ALTER, DIMINISH OR SUPERSEDE ANY "TIME OF THE
ESSENCE" PROVISION OR ANY FORFEITURE OR WAIVER OF ANY RIGHT OF TENANT WITH
RESPECT TO ANY RENEWAL TERM, THE PURCHASE OPTION OR ANY RIGHT OF FIRST REFUSAL
CONTAINED HEREIN.
A RECEIPT BY LANDLORD OF ANY SUM IN SATISFACTION OF ANY
MONETARY OBLIGATION WITH KNOWLEDGE OF THE BREACH OF ANY PROVISION HEREOF SHALL
NOT BE DEEMED A WAIVER OF SUCH BREACH, AND NO WAIVER BY LANDLORD OF ANY
PROVISION HEREOF SHALL BE DEEMED TO HAVE BEEN MADE UNLESS EXPRESSED IN A WRITING
SIGNED BY LANDLORD.
(P)
TENANT SHALL, WITHIN TEN (10) DAYS AFTER
WRITTEN REQUEST, RE-MAKE, RE-EXECUTE, RE-DELIVER, AND/OR FILE OR CAUSE THE SAME
TO BE DONE, SUCH CORRECTED OR REPLACEMENT DOCUMENTS EXECUTED IN CONNECTION WITH
THIS LEASE TRANSACTION ("SECTION 36(P) DOCUMENTS"), AS LANDLORD MAY DEEM
REASONABLY NECESSARY IN ORDER TO GIVE EFFECT TO THE RIGHTS EXPRESSLY CONFERRED
ON LANDLORD PURSUANT TO THIS LEASE AND THE TRANSACTION DOCUMENTS SUCH THAT THE
DOCUMENTS FOR THIS TRANSACTION SHALL BE AN ACCURATE REFLECTION OF THE PARTIES'
AGREEMENT HEREUNDER PROVIDED HOWEVER, UNDER NO CIRCUMSTANCES SHALL TENANT'S
OBLIGATIONS AND/OR LIABILITIES BE INCREASED BY REASON OF THE
SECTION 36(P) DOCUMENTS NOR SHALL TENANT'S RIGHTS AND/OR BENEFITS BE DECREASED
BY REASON OF THE SECTION 36(P) DOCUMENTS.
37.
SECURITY DEPOSIT.
(A)
CONCURRENTLY WITH THE MUTUAL EXECUTION OF
THIS LEASE, TENANT SHALL DELIVER TO LANDLORD A SECURITY DEPOSIT (THE "SECURITY
DEPOSIT") IN THE AMOUNT OF $20,000,000.00.
THE SECURITY DEPOSIT SHALL BE IN THE
FORM AN IRREVOCABLE LETTER OF CREDIT (THE "LETTER OF CREDIT") ISSUED BY A BANK
ACCEPTABLE TO LANDLORD AND HAVING A LONG-TERM UNSECURED DEBT RATING OF NOT LESS
THAN "A-" FROM STANDARD & POOR'S CORPORATION OR "A3" FROM MOODY'S INVESTOR
SERVICES, INC. (AN "ACCEPTABLE RATED BANK") AND IN FORM AND SUBSTANCE
SATISFACTORY TO LANDLORD.
THE SECURITY DEPOSIT SHALL REMAIN IN FULL FORCE AND
EFFECT DURING THE TERM, SUBJECT TO THE PROVISIONS OF PARAGRAPH 37(B) AS SECURITY
FOR THE PAYMENT BY TENANT OF THE RENT AND ALL OTHER CHARGES OR PAYMENTS TO BE
PAID HEREUNDER AND THE PERFORMANCE OF THE COVENANTS AND OBLIGATIONS CONTAINED
HEREIN, AND THE LETTER OF CREDIT SHALL BE RENEWED AT LEAST THIRTY (30) DAYS
PRIOR TO ANY EXPIRATION THEREOF.
IF TENANT FAILS TO RENEW THE LETTER OF CREDIT
BY SUCH DATE, TIME BEING OF THE ESSENCE,
66
LANDLORD SHALL HAVE THE RIGHT AT ANY TIME AFTER THE THIRTIETH (30TH) DAY BEFORE
SUCH EXPIRATION DATE TO DRAW ON THE LETTER OF CREDIT AND TO DEPOSIT THE PROCEEDS
OF THE LETTER OF CREDIT AS A CASH SECURITY