PROVIDED, BUT IN THAT EVENT, TENANT SHALL, UPON DEMAND,
PROVIDE LANDLORD WITH A NEW LETTER OF CREDIT MEETING THE REQUIREMENTS OF THIS
LEASE, IN LIEU OF SUCH CASH, AND UPON RECEIPT OF SUCH REPLACEMENT LETTER OF
CREDIT, LANDLORD SHALL PROMPTLY RETURN SUCH CASH SECURITY DEPOSIT TO TENANT.
6.8.2
FORM AND ISSUER.
THE LETTER OF CREDIT SHALL BE A CLEAN,
IRREVOCABLE, UNCONDITIONAL LETTER OF CREDIT, SUBSTANTIALLY IN THE FORM ATTACHED
HERETO AS EXHIBIT F AND ISSUED BY A COMMERCIAL BANK, TRUST COMPANY OR NATIONAL
BANKING ASSOCIATION, WHICH HAS OUTSTANDING, UNSECURED, UNINSURED AND
UNGUARANTEED INDEBTEDNESS, OR SHALL HAVE ISSUED A LETTER OF CREDIT OR OTHER
CREDIT FACILITY THAT CONSTITUTES THE PRIMARY SECURITY FOR AN OUTSTANDING
INDEBTEDNESS (WHICH IS OTHERWISE UNINSURED AND UNGUARANTEED), THAT IS THEN (AND
THEREAFTER CONTINUES TO BE) RATED, WITHOUT REGARD TO QUALIFICATION OF SUCH
RATING BY SYMBOLS SUCH AS "+" OR "-" OR NUMERICAL NOTATION "A" OR BETTER BY
MOODY'S INVESTMENT SERVICE (OR ITS SUCCESSOR) AND "A" OR BETTER BY STANDARD &
POOR'S RATINGS SERVICE (OR ITS SUCCESSOR) (AND IS NOT ON CREDIT-WATCH OR SIMILAR
CREDIT REVIEW WITH NEGATIVE IMPLICATION), AND HAS COMBINED CAPITAL, SURPLUS AND
UNDIVIDED PROFITS OF NOT LESS THAN $1,000,000,000.
IN THE EVENT THE ISSUER OF
THE LETTER OF CREDIT IS DOWNGRADED SO THAT IT NO LONGER SATISFIES THE RATING
REQUIREMENTS SET FORTH IN THIS SECTION 6.8,
LANDLORD SHALL HAVE THE RIGHT, TO
REQUIRE TENANT TO PROCURE A REPLACEMENT LETTER OF CREDIT FROM AN ISSUER THAT
SATISFIES THE REQUIREMENTS OF THIS SECTION 6.8 WITHIN FIFTEEN (15) DAYS AFTER
LANDLORD NOTIFIES TENANT OF SUCH REQUIREMENT; PROVIDED THAT LANDLORD SHALL
COOPERATE WITH TENANT IN EXCHANGING THE EXISTING LETTER OF CREDIT FOR THE NEW
LETTER OF CREDIT SO THAT TENANT IS NOT REQUIRED TO HAVE TWO LETTERS OF CREDIT
OUTSTANDING SIMULTANEOUSLY.
34
6.8.3
DECREASE IN AMOUNT.
UPON THE 3RD ANNIVERSARY OF THE COMMENCEMENT
DATE, (THE "SECURITY DEPOSIT REDUCTION DATE") THE AMOUNT OF THE SECURITY DEPOSIT
HELD PURSUANT TO THIS SECTION 6.8
SHALL BE REDUCED TO THREE HUNDRED EIGHTY TWO
THOUSAND DOLLARS ($382,000), PROVIDED THAT SUCH DECREASE SHALL BE CONTINGENT
UPON TENANT NOT BEING IN DEFAULT UNDER THE LEASE BEYOND ALL APPLICABLE CURE AND
GRACE PERIODS AS OF THE SECURITY DEPOSIT REDUCTION DATE:
6.8.4
DRAWS ON DEFAULT.
IF, AND AS SOON AS, THERE SHALL EXIST AN EVENT OF
DEFAULT (AND ON THE OCCASION OF EACH EVENT OF DEFAULT IF THERE SHALL BE MORE
THAN ONE), LANDLORD MAY DRAW UPON THE LETTER OF CREDIT AT ANY TIME AND FROM TIME
TO TIME IN SUCH AMOUNT OR AMOUNTS AS MAY BE NECESSARY TO CURE THE DEFAULT(S) OR
TO REIMBURSE LANDLORD FOR ANY SUM(S) WHICH LANDLORD MAY HAVE SPENT TO CURE THE
DEFAULT(S), AND IF LANDLORD HAS TERMINATED THIS LEASE DUE TO TENANT'S
DEFAULT(S), LANDLORD MAY ALSO DRAW UPON THE LETTER OF CREDIT IN SUCH AMOUNT (OR
ALL) AS MAY BE NECESSARY TO OBTAIN ANY AMOUNTS FROM TIME TO TIME OWED TO
LANDLORD BY TENANT AFTER TERMINATION.
IN THE CASE OF EACH SUCH DRAWING (EXCEPT
A DRAWING OCCURRING AFTER TERMINATION OR EXPIRATION