MONTHS
AFTER THE EXPIRATION DATE OF THIS LEASE (OR EIGHTEEN (18) MONTHS AFTER SUCH
LATER DATE AS THE INFORMATION REQUIRED TO CALCULATE SUCH BILL FOR TAXES IS
REASONABLY AVAILABLE TO LANDLORD, OR IF LATER, EIGHTEEN (18) MONTHS AFTER THE
DATE OF FINAL SETTLEMENT WITH THE TAXING AUTHORITY FOR TAXES FOR A TAX YEAR);
THEN, IN THE CASE OF SUCH FAILURE SET FORTH IN CLAUSE (X), LANDLORD SHALL BE
DEEMED TO HAVE WAIVED THE PAYMENT OF ANY THEN UNPAID ADDITIONAL CHARGES WHICH
WOULD HAVE BEEN DUE PURSUANT TO SAID LANDLORD'S STATEMENT (OR CORRECTED
LANDLORD'S STATEMENT) FOR SUCH OPERATING YEAR, AND IN THE CASE OF SUCH FAILURE
SET FORTH IN CLAUSE (Y), LANDLORD SHALL DEEMED TO HAVE WAIVED THE PAYMENT OF ANY
THEN UNPAID ADDITIONAL CHARGES WHICH WOULD HAVE BEEN DUE PURSUANT TO SAID BILL
FOR TAXES (OR CORRECTED BILL FOR TAXES).
ARTICLE 4
SECURITY
4.01
SUBJECT TO SECTION 4.06 BELOW, ON OR BEFORE
5:00 P.M. EDT ON OCTOBER 15, 2009 (WITH TIME BEING OF THE ESSENCE), TENANT SHALL
DELIVER TO LANDLORD AS SECURITY FOR THE FULL AND FAITHFUL PERFORMANCE AND
OBSERVANCE BY TENANT OF TENANT'S COVENANTS AND OBLIGATIONS UNDER THIS LEASE A
CLEAN, IRREVOCABLE, TRANSFERABLE AND UNCONDITIONAL LETTER OF CREDIT (THE "LETTER
OF CREDIT") ISSUED BY AND DRAWN UPON A COMMERCIAL BANK APPROVED BY LANDLORD (THE
"ISSUING BANK"), WHICH LETTER OF CREDIT SHALL:
(I) HAVE A TERM OF NOT LESS THAN
ONE (1) YEAR, (II) BE IN THE FORM ATTACHED TO THIS LEASE AS EXHIBIT D OR IN SUCH
OTHER FORM ACCEPTABLE TO LANDLORD, (III) BE FOR THE ACCOUNT OF LANDLORD, (IV) BE
IN AT LEAST THE AMOUNT OF $922,936.98 (THE "SECURITY DEPOSIT"), (V) EXCEPT AS
OTHERWISE PROVIDED IN THIS SECTION 4.01, CONFORM AND BE SUBJECT TO UNIFORM
15
CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 590, (VI) BE FULLY TRANSFERABLE BY LANDLORD WITHOUT ANY FEES OR
CHARGES THEREFOR, (VII) PROVIDE THAT LANDLORD SHALL BE ENTITLED TO DRAW UPON THE
LETTER OF CREDIT UPON PRESENTATION TO AN OFFICE OF THE ISSUING BANK IN THE
BOROUGH OF MANHATTAN OF A SIGHT DRAFT ACCOMPANIED BY THE LETTER OF CREDIT AND
LANDLORD'S SIGNED STATEMENT THAT LANDLORD IS ENTITLED TO DRAW ON THE LETTER OF
CREDIT PURSUANT TO THIS LEASE, (VIII) PROVIDE THAT THE LETTER OF CREDIT SHALL BE
DEEMED AUTOMATICALLY RENEWED, WITHOUT AMENDMENT, FOR CONSECUTIVE PERIODS OF ONE
(1) YEAR EACH YEAR THEREAFTER DURING THE TERM OF THIS LEASE, UNLESS THE ISSUING
BANK SHALL SEND NOTICE (THE "NON-RENEWAL NOTICE") TO LANDLORD BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, NOT LESS THAN SIXTY (60) DAYS NEXT
PRECEDING THE THEN EXPIRATION DATE OF THE LETTER OF CREDIT THAT THE ISSUING BANK
ELECTS NOT TO RENEW SUCH LETTER OF CREDIT, IN WHICH CASE LANDLORD SHALL HAVE THE
RIGHT, BY SIGHT DRAFT ON AN OFFICE OF THE ISSUING BANK IN THE BOROUGH OF
MANHATTAN, TO RECEIVE THE MONIES REPRESENTED BY THE THEN EXISTING LETTER OF
CREDIT, AND TO HOLD AND/OR DISBURSE SUCH PROCEEDS PURSUANT TO THE TERMS OF THIS
ARTICLE 4,