THIS LEASE.
THE LETTER OF CREDIT SHALL (I)
GOVERNED BY THE RULES AND PROCEDURES OF THE INTERNATIONAL STANDBY PRACTICES
1998, PROMULGATED JOINTLY BY THE INSTITUTE FOR INTERNATIONAL BANKING LAW AND
PRACTICE AND THE INTERNATIONAL CHAMBER OF COMMERCE, EFFECTIVE JANUARY 1, 1999;
(II) BE ISSUED BY A NEW YORK CITY METROPOLITAN AREA OR NEW JERSEY FEDERALLY
INSURED COMMERCIAL BANK (1) ORGANIZED UNDER THE LAWS OF THE UNITED STATES OF
AMERICA OR ANY STATE THEREOF, (2) DOING BUSINESS IN THE UNITED STATES OF
AMERICA, (3) SUBJECT TO STATE OR FEDERAL BANKING REGULATORY AUTHORITIES, (4)
HAVING A COMBINED CAPITAL, SURPLUS AND UNDIVIDED PROFITS (LESS ANY UNDIVIDED
LOSSES) OF NOT LESS THAN TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000.00),
AND (5) HAVING A COMMERCIAL PAPER RATING OF A-1 (OR THEN EQUIVALENT) FROM
STANDARD & POOR'S CORPORATION OR P- I (OR THEN EQUIVALENT) FROM MOODY'S
INVESTORS SERVICE, INC. AND OTHERWISE REASONABLY ACCEPTABLE TO LANDLORD
(COLLECTIVELY "BANK CRITERIA"); (IV) BE PAYABLE IN FULL OR PARTIAL DRAWS UPON
PRESENTATION OF THE FOLLOWING TO THE ISSUER OF THE LETTER OF CREDIT: (X) A
LETTER ON LANDLORD'S LETTERHEAD STATING THAT LANDLORD IS ENTITLED TO THE LETTER
OF CREDIT PROCEEDS; AND (Y) A COPY OF THE LETTER OF CREDIT; (V) PROVIDE THAT THE
DOCUMENTATION TO BE SUPPLIED BY LANDLORD IN CONNECTION WITH ANY DRAW MAY BE
PRESENTED TO THE ISSUER IN AN ELECTRONIC FORMAT; (VI) BE MADE EXPRESSLY
TRANSFERABLE AND ASSIGNABLE (WITHOUT CONDITION OF PAYMENT BY TENANT, LANDLORD OR
ANY TRANSFEREE THEREOF) BY LANDLORD FROM TIME TO TIME UNDER THIS LEASE, TO ANY
ASSIGNEE OF LANDLORD'S INTEREST IN THIS LEASE, ANY MORTGAGEE, OR ANY RECEIVER OF
SUCH LANDLORD (IT BEING AGREED THAT THE LETTER OF CREDIT SHALL BE DELIVERED ONLY
TO ANY SUCH PERSONS OR ENTITIES); AND (VII) SUBJECT TO SECTION 11.2(C) BELOW,
INCLUDE AN "EVERGREEN" PROVISION WHICH PROVIDES THAT THE LETTER OF CREDIT SHALL
BE AUTOMATICALLY RENEWED ON AN ANNUAL BASIS, SUCH THAT THE LETTER OF CREDIT
REMAINS IN EFFECT THROUGH THE PERIOD REQUIRED BY ARTICLE 1 OF THIS LEASE.
IN
THE EVENT A REPLACEMENT LETTER OF CREDIT IS ISSUED AT ANY TIME DURING THE TERM
BY A BANK OTHER THAN THE INITIALLY APPROVED BANK, SUCH REPLACEMENT LETTER OF
CREDIT SHALL BE ISSUED BY A BANK WHICH SATISFIES THE BANK CRITERIA. TENANT
EXPRESSLY WAIVES ANY RIGHT IT MIGHT OTHERWISE HAVE TO PREVENT LANDLORD FROM
DRAWING ON THE LETTER OF CREDIT, AND AGREES THAT AN ACTION FOR DAMAGES (AND NOT
INJUNCTIVE OR OTHER EQUITABLE RELIEF) SHALL BE TENANT'S SOLE AND EXCLUSIVE
REMEDY IN THE EVENT TENANT DISPUTES LANDLORD'S CLAIM TO ANY SUCH AMOUNTS WHICH
ARE THE BASIS FOR LANDLORD'S DRAW UPON THE LETTER OF CREDIT.
F-25
(B)
LANDLORD SHALL NOT BE REQUIRED TO MAINTAIN THE PROCEEDS OF ANY
DRAW UPON THE LETTER OF CREDIT IN A SEPARATE ACCOUNT AND, EXCEPT FOR ANY MINIMUM
AMOUNT OF INTEREST THAT MAY BE REQUIRED BY APPLICABLE LEGAL REQUIREMENTS
PERTAINING TO COMMERCIAL LEASES, TENANT SHALL NOT BE ENTITLED TO INTEREST
THEREON. IN NO EVENT SHALL THE SECURITY DEPOSIT BE CONSIDERED AN ADVANCE PAYMENT
OF RENT,