CREDIT, TENANT SHALL
FORTHWITH RESTORE THE AMOUNT SO APPLIED OR RETAINED BY DELIVERING AN ADDITIONAL
CASH SECURITY DEPOSIT OR AN ADDITIONAL OR NEW LETTER OF CREDIT SO THAT, AT ALL
TIMES, THE AMOUNT OF THE SECURITY DEPOSIT SHALL BE THE AMOUNT OF THE AFFILIATE
FREE RENT PERIOD SECURITY DEPOSIT AND/OR THE RATING CHANGE SECURITY DEPOSIT, AS
APPLICABLE.
PROVIDED THERE IS NO UNCURED DEFAULT, ANY BALANCE OF THE PROCEEDS
OF THE LETTER OF CREDIT HELD BY LANDLORD AND NOT USED, APPLIED OR RETAINED BY
LANDLORD AS ABOVE PROVIDED, AND ANY REMAINING LETTER OF CREDIT, SHALL BE
RETURNED TO TENANT IN ACCORDANCE WITH SECTION 11.02(B) IN THE CASE OF THE
AFFILIATE FREE RENT PERIOD SECURITY DEPOSIT OR AFTER THE DELIVERY OF POSSESSION
OF THE DEMISED PREMISES IN THE CASE OF THE RATING CHANGE SECURITY DEPOSIT.
40.02
IF TENANT DELIVERS A LETTER OF CREDIT, IT SHALL BE A
CLEAN, IRREVOCABLE AND UNCONDITIONAL LETTER OF CREDIT (SUCH LETTER OF CREDIT,
AND ANY REPLACEMENT THEREOF AS PROVIDED HEREIN, IS CALLED A "LETTER OF CREDIT")
ISSUED AND DRAWN UPON ANY COMMERCIAL BANK APPROVED BY LANDLORD WITH OFFICES FOR
BANKING PURPOSES IN THE STATE OF NEW JERSEY OR THE CITY OF NEW YORK ("ISSUING
BANK"), WHICH LETTER OF CREDIT SHALL HAVE A TERM OF NOT LESS THAN ONE YEAR, BE
IN FORM AND CONTENT REASONABLY SATISFACTORY TO LANDLORD, BE FOR THE ACCOUNT OF
LANDLORD AND BE IN THE AMOUNT OF THE SECURITY DEPOSIT SET FORTH IN THE REFERENCE
PAGE.
THE LETTER OF CREDIT SHALL PROVIDE THAT:
(1)
The Issuing Bank shall pay to Landlord or
its duly authorized representative an amount up to 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;
(2)
The Letter of Credit shall be deemed to be
automatically renewed, without amendment, for consecutive periods of one year
each during the Term, unless the Issuing Bank sends written notice (the
"Non-Renewal Notice") to Landlord by certified or registered mail, return
receipt requested, at least thirty (30) days prior to the expiration date of the
Letter of Credit, to the effect that it elects not to have such Letter of Credit
renewed;
(3)
The Letter of Credit delivered in respect
of the last year of the Term shall have an expiration date of not earlier than
thirty (30) days after the Expiration Date; and
(4)
The Letter of Credit shall be transferable
by Landlord as provided in Section 40.04.
40.03
LANDLORD, AFTER RECEIPT OF THE NON-RENEWAL NOTICE,
SHALL HAVE THE RIGHT TO DRAW THE ENTIRE AMOUNT OF THE LETTER OF CREDIT AND TO
HOLD THE PROCEEDS AS A CASH SECURITY DEPOSIT.
LANDLORD SHALL RELEASE SUCH
PROCEEDS TO TENANT UPON DELIVERY TO LANDLORD OF A REPLACEMENT LETTER OF CREDIT
COMPLYING WITH THE TERMS HEREOF.
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40.04
IN THE EVENT OF THE SALE OR LEASE OF THE BUILDING,
LANDLORD SHALL HAVE THE RIGHT TO TRANSFER THE SECURITY DEPOSIT, WITHOUT CHARGE
FOR SUCH TRANSFER, TO THE PURCHASER OR LESSEE, AND,