Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 3 contracts
Samples: Office Lease (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, Credit and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of If any portion of the Letter of CreditCredit is drawn upon, regardless Tenant shall, within ten (10) days after written demand therefor from Landlord, reinstate the Letter of whether any dispute exists between Credit to the amount then required under this Lease, and Tenant’s failure to do so shall be an incurable default under this Lease. Tenant and acknowledges that Landlord as to Landlord's has the right to draw upon transfer or mortgage its interest in the Project and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord shall have the right to transfer or assign the Letter of Credit to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the Letter of Credit. No condition or term of this Lease or the 13480 Lease Tenant shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately pay all costs associated with the Commission. conditional to justify the issuer transfer or re-issuance of the Letter of Credit in failing due to honor a drawing upon such Letter of Credit in a timely mannerLandlord’s transfer or assignment. Tenant agrees and acknowledges that shall, within five (i5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to evidence or confirm Landlord’s transfer or assignment of the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant to such transferee or mortgagee. If there is not then a third party beneficiary breach by Tenant under this Lease, the Letter of Credit shall be returned to Tenant within sixty (60) days following the expiration of the Lease Term; provided, however, that to the extent Landlord has assigned the Letter of Credit, Landlord shall use its commercially reasonable efforts to cooperate with Tenant to have the same timely returned to Tenant; provided, however, that in no event shall any such contract, (iii) return be construed as an admission by Landlord that Tenant has no property interest whatsoever in performed all of its covenants and obligations hereunder. Tenant acknowledges that Landlord may use all or any part of the Letter of Credit or the proceeds thereofthereof to compensate Landlord for damages resulting from termination of this Lease and the tenancy created hereunder (including, and (iv) in the event Tenant becomes a debtor without limitation, damages recoverable under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of California Civil Code Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise1951.2).
Appears in 3 contracts
Samples: Lease, Lease (Silver Spring Networks Inc), Lease (Silver Spring Networks Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 3 contracts
Samples: Tenant Improvement Agreement (SVMK Inc.), Tenant Improvement Agreement (SVMK Inc.), Sublease (Zuora Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 13500 Lease. If Tenant shall breach any provision of this Lease or the 13480 13500 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 13500 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 13500 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 13500 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 3 contracts
Samples: Office Lease (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Codedefault. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Office Lease (BrightSource Energy Inc), Office Lease (Opentv Corp)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default Event of Default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision Upon an Event of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)Default by Tenant, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default Event of Default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default ’s Event of this Lease or the 13480 LeaseDefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Reciprocal Easement Agreement (Silver Spring Networks Inc), Reciprocal Easement Agreement (Silver Spring Networks Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision Upon the occurrence of this Lease or the 13480 Lease (or otherwise be events set forth in default hereunder or thereunder)Section 16.1 above permitting Landlord to draw on the Letter of Credit, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Reciprocal Easement Agreement (Forescout Technologies, Inc), Reciprocal Easement Agreement (Forescout Technologies, Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (Lease, or otherwise be in default hereunder or thereunder)hereunder, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Codedefault. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Office Lease (Motricity Inc), Office Lease (Motricity Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any uncured breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Office Lease (iRhythm Technologies, Inc.), Office Lease (iRhythm Technologies, Inc.)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default Event of Default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 2 contracts
Samples: Freshworks Inc., Freshworks Inc.
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Security Deposit Letter of Credit upon the occurrence of any breach or default Event of Default on the part of Tenant under this Lease or the 13480 Lease. If an Event of Default by Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)occurs, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default such Event of Tenant Default and/or to compensate Landlord for any and all damages that Landlord is entitled to as a result of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default such Event of Default under Sections 20.2 and 20.3 of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Security Deposit Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Security Deposit Letter of Credit, and the use, application or retention of the Security Deposit Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees agrees, after an Event of Default or any other time that Landlord is entitled to draw on the Security Deposit Letter of Credit, not to interfere in any way with payment to Landlord of the proceeds of the Security Deposit Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Security Deposit Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Security Deposit Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Security Deposit Letter of Credit in failing to honor a drawing upon such Security Deposit Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Security Deposit Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Security Deposit Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise. If, for any reason, the amount of the Security Deposit Letter of Credit becomes less than the Security Deposit Letter of Credit Amount, Tenant shall, within ten (10) business days of demand, either provide Landlord with a cash security deposit equal to such difference or provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the total Security Deposit Letter of Credit Amount or an amendment to the existing Security Deposit Letter of Credit to increase the Security Deposit Letter of Credit Amount by the deficiency), and any such additional (or replacement) letter of credit or letter of credit amendments shall comply with all of the provisions of this Article and Exhibit Q, and if Tenant fails to comply with the foregoing, then, notwithstanding anything to the contrary contained in this Article or Exhibit Q, then at Landlord’s option, such failure shall be an Event of Default under the Lease. If Tenant furnishes cash for the deficiency amount in accordance with the preceding sentence, Tenant may thereafter deposit an additional letter of credit(s) or replacement letter of credit in accordance with this Section, in which case, Landlord shall return such cash proceeds to Tenant within ten (10) days after receipt of such letter of credit. Without limiting the generality of the foregoing, if the Security Deposit Letter of Credit expires earlier than the LC Expiration Date applicable to the Security Deposit Letter of Credit, Landlord shall accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Security Deposit Letter of Credit), which shall be irrevocable and automatically renewable (or renewable through amendment) through the LC Expiration Date applicable to the Security Deposit Letter of Credit upon the same terms as the expiring Security Deposit Letter of Credit or such other terms as may be acceptable to Landlord in its reasonable discretion. However, if the Security Deposit Letter of Credit is not timely renewed, or if Tenant fails to maintain the Letter of Credit in the amount and in accordance with the terms set forth in this Article and Exhibit Q, such shall constitute an Event of Default under the Lease and Landlord shall have the right to present the Security Deposit Letter of Credit to the Bank in accordance with the terms of this Article and Exhibit Q, and draw upon the Letter of Credit, in part or in whole, to cure such Event of Default and/or to compensate Landlord for any and all damages that Landlord is entitled to as a result of such Event of Default under Sections 20.2 and 20.3 of the Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord's other assets.
Appears in 1 contract
Samples: Into Lease and Purchase Option (PACIFIC GAS & ELECTRIC Co)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by have the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's immediate right to draw upon the Letter L-C, in whole or in part and without prior notice to Tenant, other than that required under the Lease, at any time and from time to time: (i) if an Event of CreditDefault is then occurring, or (ii) Tenant either files a voluntary petition, or an involuntary petition is filed against Tenant by an entity other than Landlord, under any chapter of the Federal Bankruptcy Code or Tenant executes an assignment for the benefit of creditors. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify L-C conditional, thereby justifying the issuer of the Letter of Credit L-C in failing to honor a drawing upon such Letter of Credit L-C in a timely manner. Tenant agrees The L-C and acknowledges that its proceeds shall constitute Landlord’s sole and separate property (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Banknot Tenant’s property or, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes of a debtor under bankruptcy filing by Tenant, property of Tenant’s bankruptcy estate) and Landlord may immediately upon any chapter draw (and without notice to Tenant) apply or offset the proceeds of the L-C: (A) against any amounts payable by Tenant under this Lease that are not paid when due, after the expiration of any applicable notice and cure period; (B) against all losses and damages that Landlord has suffered or may reasonably estimate that it may suffer as a result of any Event of Default under this Lease, including any damages arising under Section 1951.2 of the California Civil Code for rent due following termination of this Lease; (C) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (D) against any other amount that Landlord may spend or become obligated to spend by reason of any Event of Default under this Lease but in no event in excess of amounts to which the Landlord would be entitled under the law. To the extent to Event of Default is ongoing, Landlord agrees to pay to Tenant within thirty (30) days after the Lease Expiration Date the amount of any proceeds of the L-C received by Landlord and not applied as allowed above, and return the L-C to Tenant within the foregoing thirty (30) day period; provided that if prior to the Lease Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors other than Landlord, under the Federal Bankruptcy Code, neither Tenantor Tenant executes an assignment for the benefit of creditors, then Landlord shall not be obligated to return the L-C or any trusteeproceeds of the L-C until all statutes of limitations for any preference avoidance statutes applicable to such bankruptcy or assignment for the benefit of creditors have elapsed or the bankruptcy court or assignee, nor Tenant's bankruptcy estate whichever is applicable, has executed a binding release releasing the Landlord of any and all liability for preferential transfers relating to payments made under this Lease, and Landlord may retain and offset against any remaining L-C proceeds the full amount Landlord is required to pay to any third party on account of preferential transfers relating to this Lease. If Landlord draws on the L-C as permitted in this Section 21.2, then, upon demand of Landlord, Tenant shall have any right to restrict or limit Landlord's claim and/or rights restore the amount available under the L-C to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.amount set forth in
Appears in 1 contract
Samples: Work Letter Agreement (Dexcom Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained sustained, or which that Landlord reasonably estimates that it will sustain sustain, resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawLaws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 1 contract
Samples: Lease (Lifelock, Inc.)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's Xxxxxx’s breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Codedefault. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant Xxxxxx agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant Xxxxxx and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 1 contract
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by have the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's immediate right to draw upon the Letter L-C, in whole or in part and without prior notice to Tenant, other than that required under the Lease, at any time and from time to time: (i) if an Event of CreditDefault is then occurring, or (ii) Tenant either files a voluntary petition, or an involuntary petition is filed against Tenant by an entity other than Landlord, under any chapter of the Federal Bankruptcy Code or Tenant executes an assignment for the benefit of creditors. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify L-C conditional, thereby justifying the issuer of the Letter of Credit L-C in failing to honor a drawing upon such Letter of Credit L-C in a timely manner. Tenant agrees The L-C and acknowledges that its proceeds shall constitute Landlord’s sole and separate property (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Banknot Tenant’s property or, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes of a debtor under bankruptcy filing by Tenant, property of Tenant’s bankruptcy estate) and Landlord may immediately upon any chapter draw (and without notice to Tenant) apply or offset the proceeds of the L-C: (A) against any amounts payable by Tenant under this Lease that are not paid when due, after the expiration of any applicable notice and cure period; (B) against all losses and damages that Landlord has suffered or may reasonably estimate that it may suffer as a result of any Event of Default under this Lease, including any damages arising under Section 1951.2 of the California Civil Code for rent due following termination of this Lease; (C) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (D) against any other amount that Landlord may spend or become obligated to spend by reason of any Event of Default under this Lease but in no event in excess of amounts to which the Landlord would be entitled under the law. To the extent to Event of Default is ongoing, Landxxxx xxxees to pay to Tenant within thirty (30) days after the Lease Expiration Date the amount of any proceeds of the L-C received by Landlord and not applied as allowed above, and return the L-C to Tenant within the foregoing thirty (30) day period; provided that if prior to the Lease Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors other than Landlord, under the Federal Bankruptcy Code, neither Tenantor Tenant executes an assignment for the benefit of creditors, then Landlord shall not be obligated to return the L-C or any trusteeproceeds of the L-C until all statutes of limitations for any preference avoidance statutes applicable to such bankruptcy or assignment for the benefit of creditors have elapsed or the bankruptcy court or assignee, nor Tenant's bankruptcy estate whichever is applicable, has executed a binding release releasing the Landlord of any and all liability for preferential transfers relating to payments made under this Lease, and Landlord may retain and offset against any remaining L-C proceeds the full amount Landlord is required to pay to any third party on account of preferential transfers relating to this Lease. If Landlord draws on the L-C as permitted in this Section 21.2, then, upon demand of Landlord, Tenant shall have any right to restrict or limit Landlord's claim and/or rights restore the amount available under the L-C to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.amount set forth in
Appears in 1 contract
Samples: Office Lease (Dexcom Inc)
Application of Letter of Credit. If, as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the then-applicable Stated Amount, Tenant shall, within ten (10) days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency and any such additional letter of credit shall comply with all of the provisions of these Sections 5.2, 5.3 and 5.4, and if Tenant fails to comply with the foregoing, the same shall constitute an incurable default by Tenant. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof, and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Without limiting the generality of the foregoing, if the Letter of Credit expires earlier than the LC Expiration Date, Landlord will accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Letter of Credit), which shall be irrevocable and automatically renewable as above provided through the LC Expiration Date upon the same terms as the expiring Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion. However, if the Letter of Credit is not timely renewed, or if Tenant fails to maintain the Letter of Credit in the amount and in accordance with the terms set forth in these Sections 5.2, 5.3 and 5.4, Landlord shall have the right to present the Letter of Credit to the Bank in accordance with the terms of these Sections 5.2, 5.3 and 5.4 and the proceeds of the Letter of Credit may be applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord’s other assets. Landlord agrees to pay to Tenant within thirty (30) days after the LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under this Lease that was not paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant under this Lease; provided, however, that if prior to the LC Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant there shall breach any provision occur a default under this Lease as set forth in Section 23 of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)Lease, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, Credit in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach ’s default. In the event of a default by Tenant under Sections 23.1(d) or default (f) of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon from the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereofthereof and that, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code[Axesstel, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.Inc.]
Appears in 1 contract
Samples: Work Letter Agreement (Axesstel Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder(after any applicable notice and cure period), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
Appears in 1 contract
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCCs of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant’s default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant’s default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds L-C which is drawn upon by Landlord, but is not used or applied by Landlord, shall be held by Landlord and deemed a security deposit (the “L-C Security Deposit”) and, in connection with such L-C Security Deposit, Tenant hereby waives the provisions of Section 1950.7 of the Letter of CreditCalifornia Civil Code, either prior to or following a "draw" by Landlord of any successor statute. If any portion of the Letter of CreditL-C is drawn upon and used or applied by Landlord, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall constitute part of the Letter L-C Security Deposit) in an amount sufficient to cause the sum of Credit constitutes a separate and independent contract between Landlord the L-C Security Deposit and the Bankamount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease (and if any portion of the L-C Security Deposit is thereafter used or applied, Tenant shall restore such L-C Security Deposit to the amount then required under this Lease pursuant to the foregoing), or (ii) reinstate the L-C to the amount then required under this Lease, in which case any unused portion of the then-existing L-C Security Deposit shall be returned to Tenant. Tenant is not a third party beneficiary of such contract, (iii) Tenant acknowledges that Landlord has no property the right to transfer or mortgage its interest whatsoever in the Letter of Credit or the proceeds thereof, Project and (iv) in this Lease and Tenant agrees that in the event Tenant becomes a debtor under of any chapter of the Bankruptcy Codesuch transfer or mortgage, neither Tenant, any trustee, nor Tenant's bankruptcy estate Landlord shall have any the right to restrict transfer or limit Landlord's claim assign the L-C Security Deposit and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.the
Appears in 1 contract
Samples: Office Lease (Favrille Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees If Reliant defaults (following any applicable grace periods, it being understood that Landlord no notice of a default by Reliant hereunder need be given by Mercury to Reliant if Reliant is entering into this Lease in material reliance upon the ability subject of Landlord an insolvency event or bankruptcy proceeding) with respect to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 LeaseSub-Sublease, including, but not limited to, provisions relating to the payment of Rent, Mercury may, but shall not be required to, draw down upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeLC for payment of and Rent or other sum in default, and for the payment of any amount that Mercury may spend or may become obligated to spend by reason of Reliant’s default or to compensate Mercury for any loss or damage which Mercury has suffered thereby. The use, application or retention of the Letter of CreditLC, or any portion thereof, by Landlord Mercury shall not prevent Landlord Mercury from exercising any other right or remedy provided by this Lease, by the 13480 Lease Sub-Sublease or by any applicable lawlaw or in equity, it being intended that Landlord Mercury shall not first be required to proceed against the Letter of CreditLC, and the LC shall not operate as a limitation on any recovery to which Landlord Mercury otherwise may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to If all or following a "draw" by Landlord of any portion of the Letter LC is drawn upon, Reliant, within five (5) business days after written notification from the bank or Mercury of Creditthe amount so applied, regardless shall reinstate the LC to the LC Amount required under this Sub-Sublease by providing either cash (so that the full amount of whether any dispute exists between Tenant cash and Landlord LC proceeds held by Mercury equals the LC Amount) or a replacement LC upon the identical terms and conditions set forth in this Section (so that the excess LC proceeds and the replacement LC equals the LC Amount). Reliant’s failure to provide Mercury with cash in the required amount or to reinstate the LC as required hereunder shall be further material default under this Sub-Sublease, in which case Mercury, without notice to Landlord's right Reliant, shall be permitted to draw upon down the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer entire balance of the Letter LC and apply it to any current or future obligations of Credit Reliant. Reliant waives any restriction on the use or application of any proceeds of the LC as set forth in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (iCalifornia Civil Code Sections 1950.7(a) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under or any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwisesuccessor statute thereto.
Appears in 1 contract
Application of Letter of Credit. If, as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the Stated Amount, Tenant shall, within five (5) days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency and any such additional letter of credit shall comply with all of the provisions of this Paragraph 45, and if Tenant fails to comply with the foregoing, the same shall constitute an uncurable default by Tenant. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof, and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Without limiting the generality of the foregoing, if any such Letter of Credit expires earlier than the LC Expiration Date, Landlord will accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Letter of Credit), which shall be irrevocable and automatically renewable as above provided through the LC Expiration Date upon the same terms as the expiring Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion. However, if any such Letter of Credit is not timely renewed, or if Tenant fails to maintain any such Letter of Credit in the amount and in accordance with the terms set forth in this Xxxxxxxxx 00, Xxxxxxxx shall have the right to present the Letter of Credit to the Bank in accordance with the terms of this Paragraph 45 and the proceeds of the Letter of Credit may be applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord’s other assets. Landlord agrees to pay to Tenant within thirty (30) days after the LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under this Lease that was not paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant under this Lease; provided, however, that if prior to the LC Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant there shall breach any provision occur a default under this Lease as set forth in Paragraph 25 of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)Lease, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, Credit in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled’s default. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon from the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereofthereof and that, and (iv) in the event Tenant becomes a debtor under any chapter of the Federal Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Federal Bankruptcy Code. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or any proceeds thereof be (i) deemed to be or treated as a “security deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of such Section 1950.7, or otherwise(iii) intended to serve as a “security deposit” within the meaning of such Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve as a security deposit and such Section 1950.7 and any and all other laws, rules and regulations applicable to security deposits in the commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and (B) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws.
Appears in 1 contract
Application of Letter of Credit. The L-C shall be held by ------------------------------- Landlord as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCC's of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the "L-C SECURITY DEPOSIT"). If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease; provided, however, that upon Tenant's satisfaction of its economic obligations and restoration of the L-C Security Deposit pursuant to this sentence, any dispute exists between unused portion of the drawn upon funds shall be returned to Tenant. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Real Property and the Center and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord as shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Landlord shall pay all costs associated with the transfer or re-issuance of the L-C due to Landlord's right transfer or assignment. Tenant shall, within five (5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to draw upon the Letter of Credit. No condition evidence or term of this Lease confirm Landlord's transfer or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer assignment of the Letter of Credit in failing L-C Security Deposit and/or the L-C to honor a drawing upon such Letter of Credit in a timely mannertransferee or mortgagee. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) If Tenant is not a third party beneficiary of such contractthen in default under this Lease, (iii) Tenant has no property interest whatsoever in the Letter of Credit L-C Security Deposit and/or the L-C, or the proceeds any balance thereof, and shall be returned to Tenant within thirty (iv30) in days following the event Tenant becomes a debtor under any chapter expiration of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease Term.
Appears in 1 contract
Samples: Terms of Lease (Diversa Corp)
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges of all the terms, covenants, and agrees that Landlord is entering into this conditions of the Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant’s default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant’s default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the “L-C Security Deposit”). If any portion of the Letter of CreditL-C is drawn upon, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that shall, within five (5) business days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the Letter L-C Security Deposit) in an amount sufficient to cause the sum of Credit constitutes a separate and independent contract between Landlord the L-C Security Deposit and the Bank, amount of the remaining L-C to be equivalent to the amount of the L-C then required under the Lease or (ii) reinstate the L-C to the amount then required under the Lease, and if any portion of the L-C Security Deposit is used or applied, Tenant is not shall, within five (5) business days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant’s failure to do so shall be a third party beneficiary of such contract, (iii) default under the Lease. Tenant acknowledges that Landlord has no property the right to transfer or mortgage its interest whatsoever in the Letter of Credit or Building and in the proceeds thereof, Lease and (iv) Tenant agrees that in the event of any such transfer or mortgage, Landlord shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant becomes a debtor under any chapter shall look solely to such transferee or mortgagee for the return of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit Security Deposit and/or the proceeds thereof L-C. Tenant shall, within ten (10) business days of request by application of Section 502(b)(6) Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to evidence or confirm Landlord’s transfer or assignment of the U. S. Bankruptcy Code L-C Security Deposit and/or the L-C to such transferee or otherwisemortgagee.
Appears in 1 contract
Samples: Office Lease (Novacea Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default default, beyond applicable notice and cure periods, on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach be in default under any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)Lease, beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon so much of the Letter of Credit, in part or in whole, Credit as is necessary to cure any breach or uncured default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Leaseuncured default, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of CreditCredit but the foregoing is not a waiver by Tenant of any right to xxx Landlord for any failure by Landlord to comply with the provisions of this Article 26. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise, subject, however, to any conflicting provision of the Bankruptcy Code.
Appears in 1 contract
Samples: Lease (Riverbed Technology, Inc.)
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCCs of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds L-C which is drawn upon by Landlord, but is not used or applied by Landlord, shall be held by Landlord and deemed a security deposit (the "L-C Security Deposit") and, in connection with such L-C Security Deposit, Tenant hereby waives the provisions of Section 1950.7 of the Letter of CreditCalifornia Civil Code, either prior to or following a "draw" by Landlord of any successor statute. If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease; provided, however, that upon Tenant's satisfaction of its economic obligations and restoration of the L-C Security Deposit pursuant to this sentence, any dispute exists between unused portion of the drawn upon funds shall be returned to Tenant. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Project and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord as shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Landlord shall pay all costs associated with the transfer or re-issuance of the L-C due to Landlord's right transfer or assignment. Tenant shall, within five (5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to draw upon the Letter of Credit. No condition evidence or term of this Lease confirm Landlord's transfer or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer assignment of the Letter of Credit in failing L-C Security Deposit and/or the L-C to honor a drawing upon such Letter of Credit in a timely mannertransferee or mortgagee. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) If Tenant is not a third party beneficiary of such contractthen in default under this Lease, (iii) Tenant has no property interest whatsoever in the Letter of Credit L-C Security Deposit and/or the L-C, or the proceeds any balance thereof, and shall be returned to Tenant within thirty (iv30) in days following the event Tenant becomes a debtor under any chapter expiration of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease Term.
Appears in 1 contract
Samples: Office Lease (Anacomp Inc)
Application of Letter of Credit. The L-C shall be held by Landlord ------------------------------- as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCC's of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the "L-C SECURITY DEPOSIT"). If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease; provided, however, that upon Tenant's satisfaction of its economic obligations and restoration of the L-C Security Deposit pursuant to this sentence, any dispute exists between unused portion of the drawn upon funds shall be returned to Tenant. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Real Property and the Center and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord as shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Landlord shall pay all costs associated with the transfer or re-issuance of the L-C due to Landlord's right transfer or assignment. Tenant shall, within five (5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to draw upon the Letter of Credit. No condition evidence or term of this Lease confirm Landlord's transfer or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer assignment of the Letter of Credit in failing L-C Security Deposit and/or the L-C to honor a drawing upon such Letter of Credit in a timely mannertransferee or mortgagee. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) If Tenant is not a third party beneficiary of such contractthen in default under this Lease, (iii) Tenant has no property interest whatsoever in the Letter of Credit L-C Security Deposit and/or the L-C, or the proceeds any balance thereof, and shall be returned to Tenant within thirty (iv30) in days following the event Tenant becomes a debtor under any chapter expiration of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease Term.
Appears in 1 contract
Samples: Lease (Diversa Corp)
Application of Letter of Credit. If, as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the Stated Amount, Tenant shall, within ten (10) days thereafter, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency and any such additional letter of credit shall comply with all of the provisions of this Section 5, and if Tenant fails to comply with the foregoing, the same shall constitute an uncurable default by Tenant. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof, and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Without limiting the generality of the foregoing, if any such Letter of Credit expires earlier than the LC Expiration Date, Landlord will accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Letter of Credit), which shall be irrevocable and automatically renewable as above provided through the LC Expiration Date upon the same terms as the expiring Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion. However, if any such Letter of Credit is not timely renewed, or if Tenant fails to maintain any such Letter of Credit in the amount and in accordance with the terms set forth in this Section 5, Landlord shall have the right to present the Letter of Credit to the Bank in accordance with the terms of this Section 5 and the proceeds of the Letter of Credit may be applied by Landlord against the unpaid balance of the Additional Allowance and any Rent payable by Tenant under the Lease (as modified by this Third Amendment) that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any monetary default by Tenant under the Lease (as modified by this Third Amendment). Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord’s other assets. Landlord agrees to pay to Tenant within thirty (30) days after the LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under the Lease that was not paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any monetary default by Tenant under the Lease (as modified by this Third Amendment); provided, however, that if prior to the LC Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under the Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease providing the Additional Allowance in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or monetary default on the part of Tenant under the Lease (as modified by this Lease or the 13480 LeaseThird Amendment). If Tenant there shall breach any provision of this Lease or occur a monetary default under the 13480 Lease (or otherwise be as modified by this Third Amendment) as set forth in default hereunder or thereunder)Article 19 of the Lease, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, Credit in part or in whole, to cure any breach or such monetary default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled’s monetary default. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon from the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereofthereof and that, and (iv) in the event Tenant becomes a debtor under any chapter of the Federal Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Federal Bankruptcy Code. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or any proceeds thereof be (i) deemed to be or treated as a “security deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of such Section 1950.7, or otherwise(iii) intended to serve as a “security deposit” within the meaning of such Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve as a security deposit and such Section 1950.7 and any and all other laws, rules and regulations applicable to security deposits in the commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and (B) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws.
Appears in 1 contract
Samples: SGX Pharmaceuticals, Inc.
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon shall have the ability of Landlord immediate right to draw upon the Letter of Credit upon L-C, in whole or in part and without prior notice to Tenant, other than that required under the occurrence of Lease, at any breach or time and from time to time: (i) if a default on the part of Tenant occurs under this Lease (beyond any applicable notice and cure period), or (ii) Tenant either files a voluntary petition, or an involuntary petition is filed against Tenant by an entity other than Landlord, under any chapter of the 13480 LeaseFederal Bankruptcy Code or Tenant executes an assignment for the benefit of creditors. If Tenant shall breach any provision No condition or term of this Lease or shall be deemed to render the 13480 Lease L-C conditional, thereby justifying the issuer of the L-C in failing to honor a drawing upon such L-C in a timely manner. The L-C and its proceeds shall constitute Landlord’s sole and separate property (or otherwise be and not Tenant’s property or, in default hereunder or thereunder)the event of a bankruptcy filing by Tenant, property of Tenant’s bankruptcy estate) and Landlord may, but without obligation to do so, may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the L-C: (i) against any amounts payable by Tenant under this Lease that are not paid when due, draw upon after the Letter expiration of Creditany applicable notice and cure period; (ii) against all losses and damages that Landlord has suffered or may reasonably estimate that it may suffer as a result of any default by Tenant under this Lease, including any damages arising under Section 1951.2 of the California Civil Code for rent due following termination of this Lease; (iii) against any costs incurred by Landlord in part connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s default under this Lease but in wholeno event in excess of amounts to which the Landlord would be entitled under the law. Provided Tenant has performed all of its obligations under this Lease, Landlord agrees to cure pay to Tenant within thirty (30) days after the Lease Expiration Date the amount of any breach proceeds of the L-C received by Landlord and not applied as allowed above, and return the L-C to Tenant within the foregoing thirty (30) day period; provided that if prior to the Lease Expiration Date a voluntary petition is filed by Tenant, or default an involuntary petition is filed against Tenant by any of Tenant’s creditors other than Landlord, under the Federal Bankruptcy Code, or Tenant and/or executes an assignment for the benefit of creditors, then Landlord shall not be obligated to compensate return the L-C or any proceeds of the L-C until all statutes of limitations for any preference avoidance statutes applicable to such bankruptcy or assignment for the benefit of creditors have elapsed or the bankruptcy court or assignee, whichever is applicable, has executed a binding release releasing the Landlord for of any and all damages liability for preferential transfers relating to payments made under this Lease, and Landlord may retain and offset against any remaining L-C proceeds the full amount Landlord is required to pay to any third party on account of preferential transfers relating to this Lease. If Landlord draws on the L-C as permitted in this Section 21.2, then, upon demand of Landlord, Tenant shall restore the amount available under the L-C to the amount set forth in Section 21.1, above, by providing Landlord with an amendment to the L-C evidencing that the amount available under the L-C has been restored to the amount set forth in Section 21.1, above. In the alternative, Tenant may provide Landlord with cash, to be held by Landlord in accordance with this Section 21.2 in an amount equal to the restoration amount required under this Section 21.2. Tenant shall pay all expenses, points and fees incurred by Tenant or Landlord in renewing, replacing, drawing or transferring the L-C. Landlord and Tenant (a) acknowledge and agree that in no event or circumstance shall the L-C or any kind renewal thereof or nature sustained substitute therefor or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach any proceeds thereof be deemed to be or default of this Lease or treated as a “security deposit” under any law applicable to security deposits in the 13480 Leasecommercial context, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 1950.7 of the California Civil Code, as such Section now exists or as it may be hereafter amended or succeeded (the “Security Deposit Laws”), (b) acknowledge and agree that the L-C (including any renewal thereof or substitute therefor or any proceeds thereof) is not intended to serve as a security deposit, and the Security Deposit Laws shall have no applicability or relevancy thereto, and (c) waive any and all rights, duties and obligations that any such party may now, or in the future will, have relating to or arising from the Security Deposit Laws. The use, application or retention Tenant hereby waives the provisions of Section 1950.7 of the Letter California Civil Code and all other provisions of Creditlaw, now or thereafter in effect, which (A) establish the time frame by which a landlord must refund a security deposit under a lease, and/or (B) provide that a landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by a tenant or to clean the premises, it being agreed that Landlord may, in addition, claim those sums specified in this Section 21.2 and/or those sums reasonably necessary to compensate Landlord for any portion thereof, loss or damage caused by Landlord shall not prevent Landlord from exercising any other right or remedy provided by Tenant’s breach of this Lease, by the 13480 Lease or by including any applicable law, it being intended that damages Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or suffers following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term termination of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease.
Appears in 1 contract
Samples: Office Lease and Settlement Agreement (Peregrine Systems Inc)
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCC's of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds L-C which is drawn upon by Landlord, but is not used or applied by Landlord, shall be held by Landlord and deemed a security deposit (the "L-C SECURITY DEPOSIT"), and, in connection with any such L-C Security Deposit, Tenant hereby waives the provisions of Section 1950.7 of the Letter of CreditCalifornia Civil Code, either prior to or following a "draw" by Landlord of any successor statute. If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease; provided, however, that upon Tenant's satisfaction of its economic obligations and restoration of the L-C Security Deposit pursuant to this sentence, any dispute exists between unused portion of the drawn upon funds shall be returned to Tenant. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Real Property and the Center and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord as shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Landlord shall pay all costs associated with the transfer or re-issuance of the L-C due to Landlord's right transfer or assignment. Tenant shall, within five (5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to draw upon the Letter of Credit. No condition evidence or term of this Lease confirm Landlord's transfer or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer assignment of the Letter of Credit in failing L-C Security Deposit and/or the L-C to honor a drawing upon such Letter of Credit in a timely mannertransferee or mortgagee. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) If Tenant is not a third party beneficiary of such contractthen in default under this Lease, (iii) Tenant has no property interest whatsoever in the Letter of Credit L-C Security Deposit and/or the L-C, or the proceeds any balance thereof, and shall be returned to Tenant within thirty (iv30) in days following the event Tenant becomes a debtor under any chapter expiration of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease Term.
Appears in 1 contract
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges and agrees that Landlord is entering into of all the TCC's of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the "L-C SECURITY DEPOSIT"). If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease; provided, however, that upon Tenant's satisfaction of its economic obligations and restoration of the L-C Security Deposit pursuant to this sentence, any dispute exists between unused portion of the drawn upon funds shall be returned to Tenant. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Real Property and the Center and in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord as shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Landlord shall pay all costs associated with the transfer or re-issuance of the L-C due to Landlord's right transfer or assignment. Tenant shall, within five (5) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to draw upon the Letter of Credit. No condition evidence or term of this Lease confirm Landlord's transfer or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer assignment of the Letter of Credit in failing L-C Security Deposit and/or the L-C to honor a drawing upon such Letter of Credit in a timely mannertransferee or mortgagee. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) If Tenant is not a third party beneficiary of such contractthen in default under this Lease, (iii) Tenant has no property interest whatsoever in the Letter of Credit L-C Security Deposit and/or the L-C, or the proceeds any balance thereof, and shall be returned to Tenant within thirty (iv30) in days following the event Tenant becomes a debtor under any chapter expiration of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseLease Term.
Appears in 1 contract
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges of all the terms, covenants, and agrees that Landlord is entering into conditions of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the "L-C Security Deposit"). If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) business days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Credit, regardless the L-C Security Deposit and the amount of whether any dispute exists between Tenant and Landlord as the remaining L-C to Landlord's right be equivalent to draw upon the Letter amount of Credit. No condition or term of the L-C then required under this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) reinstate the L-C to the amount then required under this Lease, and if any portion of the L-C Security Deposit is used or applied, Tenant is not shall, within ten (10) business days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a third party beneficiary of such contract, (iii) default under this Lease. Tenant acknowledges that Landlord has no property the right to transfer or mortgage its interest whatsoever in the Letter of Credit or Real Property and the proceeds thereof, Building and (iv) in this Lease and Tenant agrees that in the event of any such transfer or mortgage, Landlord shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant becomes a debtor under any chapter shall look solely to such transferee or mortgagee for the return of the Bankruptcy CodeL-C Security Deposit and/or the L-C. Tenant shall, neither Tenantwithin ten (10) business days of request by Landlord, any trustee, nor Tenant's bankruptcy estate shall have any right execute such further instruments or assurances as Landlord may reasonably deem necessary to restrict evidence or limit confirm Landlord's claim and/or rights to transfer or assignment of the Letter of Credit L-C Security Deposit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code L-C to such transferee or otherwisemortgagee.
Appears in 1 contract
Samples: Office Lease (Corgentech Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained sustained, or which that Landlord reasonably estimates that it will sustain sustain, resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawLaws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.and
Appears in 1 contract
Samples: Lease (Atlassian Corp PLC)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon as protection for the occurrence full and faithful performance by Tenant of all of its obligations under this Lease and for all losses and damages Landlord may suffer (or which Landlord reasonably estimates that it may suffer) as a result of any breach or default on the part of by Tenant under this Lease. Landlord, or its then managing agent, shall have the right to draw down an amount up to the face amount of the Letter of Credit if any of the following shall have occurred or be applicable: (A) such amount is due to Landlord under the terms and conditions of this Lease following a Default by Tenant, or (B) Tenant has filed a voluntary petition under the 13480 LeaseU. S. Bankruptcy Code or any state bankruptcy code (collectively, the “Bankruptcy Code”), or (C) an involuntary petition has been filed against Tenant under the Bankruptcy Code, or (D) the Bank has notified Landlord that the Letter of Credit will not be renewed or extended through the Letter of Credit Expiration Date, or (E) a Bank Credit Threat or Receivership (as such term is defined in Section 5.6, below) has occurred and Tenant has failed to comply with the requirements of either Section 5.2.5, above, or Section 5.6, below, as applicable. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder beyond any applicable notice and cure period or thereunder)if any of the foregoing events identified in Sections 5.3(B) through (E) shall have occurred, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, and the proceeds may be applied by Landlord (i) to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default, (ii) against any Rent payable by Tenant under this Lease that is not paid when due and/or (iii) to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach or default of by Tenant under this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon the Letter of Credit. In the event of a wrongful draw, the parties shall cooperate to allow Tenant to post a replacement Letter of Credit simultaneously with the return to Tenant of the wrongfully drawn sums, and Landlord shall upon request confirm in writing to the issuer of the Letter of Credit that Landlord’s draw was erroneous. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iiic) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivd) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.. 5.4 Letter of Credit not a Security Deposit. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or any proceeds thereof be (i) deemed to be or treated as a “security deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of such Section 1950.7, or (iii) intended to serve as a “security deposit” within the meaning of such Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve as a security deposit and such Section 1950.7 and any and all other laws, rules and regulations applicable to security deposits in the commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and (B) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. 5.5
Appears in 1 contract
Samples: Neurocrine Biosciences Inc
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any uncured breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's ’s breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of f Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 1 contract
Application of Letter of Credit. The L-C shall be held by Landlord as security for the faithful performance by Tenant hereby acknowledges of all the terms, covenants, and agrees that Landlord is entering into conditions of this Lease to be kept and performed by Tenant during the Lease Term. The L-C shall not be mortgaged, assigned or encumbered in material reliance upon any manner whatsoever by Tenant without the ability prior written consent of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 LeaseLandlord. If Tenant shall breach defaults with respect to any provision provisions of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder), Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, the provisions relating to the payment of Rent, or if Tenant fails to renew the L-C at least thirty (30) days before its expiration, Landlord may, but shall not be required to, draw upon all damages or rent due upon termination of this Lease pursuant to Section 1951.2 any portion of the California Civil CodeL-C for payment of any Rent or any other sum in default, or for the payment of any amount that Landlord may reasonably spend or may become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant's default. The use, application or retention of the Letter of CreditL-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, L-C and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord Any amount of the proceeds of the Letter of CreditL-C which is drawn upon by Landlord, either prior to but is not used or following a "draw" applied by Landlord, shall be held by Landlord of and deemed a security deposit (the "L-C Security Deposit"). If any portion of the Letter L-C is drawn upon, Tenant shall, within ten (10) business days after written demand therefor, either (i) deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to cause the sum of Creditthe L-C Security Deposit and the amount of the remaining L-C to be equivalent to the amount of the L-C then required under this Lease or (ii) reinstate the L-C to the amount then required under this Lease, regardless and if any portion of whether the L-C Security Deposit is used or applied, Tenant shall, within ten (10) business days 3 days after written demand therefor, deposit cash with Landlord (which cash shall be applied by Landlord to the L-C Security Deposit) in an amount sufficient to restore the L-C Security Deposit to the amount then required under this Lease, and Tenant's failure to do so shall be a default under this Lease. Tenant acknowledges that Landlord has the right to transfer or mortgage its interest in the Real Property and the Building and in this Lease and Tenant agrees that in the event of any dispute exists between such transfer or mortgage, Landlord shall have the right to transfer or assign the L-C Security Deposit and/or the L-C to the transferee or mortgagee, and in the event of such transfer, Tenant and shall look solely to such transferee or mortgagee for the return of the L-C Security Deposit and/or the L-C. Tenant shall, within ten (10) business days of request by Landlord, execute such further instruments or assurances as Landlord as may reasonably deem necessary to evidence or confirm Landlord's right transfer or assignment of the L-C Security Deposit and/or the L-C to draw upon such transferee or mortgagee. In the Letter event Tenant is not in default of Creditthis Lease, beyond any applicable cure period set forth herein, following the second (2nd) anniversary of the Lease Commencement Date, the Security Deposit shall be reduced to an amount equal to $258,453.00. No condition or term In the event Tenant is not in default of this Lease, beyond any applicable cure period set forth herein, following the third (3rd) anniversary of the Lease Commencement Date, the Security Deposit shall be reduced to an amount equal to $172,302.00. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the L-C Security Deposit and/or the L-C, or the 13480 Lease any balance thereof, shall be deemed returned to render Tenant within three (3) business days following the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer fourth (4th) anniversary of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the BankLease Commencement Date, (ii) Tenant is not a third party beneficiary of such contractnotwithstanding any obligations under Section 4.4.1, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwiseabove.
Appears in 1 contract
Samples: Office Lease (Surge Components Inc)
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Security Deposit Letter of Credit upon the occurrence of any breach or default Event of Default on the part of Tenant under this Lease or the 13480 Lease. If an Event of Default by Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)occurs, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default such Event of Tenant Default and/or to compensate Landlord for any and all damages that Landlord is entitled to as a result of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default such Event of Default under Sections 20.2 and 20.3 of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Security Deposit Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Security Deposit Letter of Credit, and the use, application or retention of the Security Deposit Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees Xxxxxx agrees, after an Event of Default or any other time that Landlord is entitled to draw on the Security Deposit Letter of Credit, not to interfere in any way with payment to Landlord of the proceeds of the Security Deposit Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Security Deposit Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Security Deposit Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Security Deposit Letter of Credit in failing to honor a drawing upon such Security Deposit Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Security Deposit Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Security Deposit Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise. If, for any reason, the amount of the Security Deposit Letter of Credit becomes less than the Security Deposit Letter of Credit Amount, Tenant shall, within ten (10) business days of demand, either provide Landlord with a cash security deposit equal to such difference or provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the total Security Deposit Letter of Credit Amount or an amendment to the existing Security Deposit Letter of Credit to increase the Security Deposit Letter of Credit Amount by the deficiency), and any such additional (or replacement) letter of credit or letter of credit amendments shall comply with all of the provisions of this Article and Exhibit Q, and if Tenant fails to comply with the foregoing, then, notwithstanding anything to the contrary contained in this Article or Exhibit Q, then at Landlord’s option, such failure shall be an Event of Default under the Lease. If Tenant furnishes cash for the deficiency amount in accordance with the preceding sentence, Tenant may thereafter deposit an additional letter of credit(s) or replacement letter of credit in accordance with this Section, in which case, Landlord shall return such cash proceeds to Tenant within ten (10) days after receipt of such letter of credit. Without limiting the generality of the foregoing, if the Security Deposit Letter of Credit expires earlier than the LC Expiration Date applicable to the Security Deposit Letter of Credit, Landlord shall accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Security Deposit Letter of Credit), which shall be irrevocable and automatically renewable (or renewable through amendment) through the LC Expiration Date applicable to the Security Deposit Letter of Credit upon the same terms as the expiring Security Deposit Letter of Credit or such other terms as may be acceptable to Landlord in its reasonable discretion. However, if the Security Deposit Letter of Credit is not timely renewed, or if Tenant fails to maintain the Letter of Credit in the amount and in accordance with the terms set forth in this Article and Exhibit Q, such shall constitute an Event of Default under the Lease and Landlord shall have the right to present the Security Deposit Letter of Credit to the Bank in accordance with the terms of this Article and Exhibit Q, and draw upon the Letter of Credit, in part or in whole, to cure such Event of Default and/or to compensate Landlord for any and all damages that Landlord is entitled to as a result of such Event of Default under Sections 20.2 and 20.3 of the Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord's other assets.
Appears in 1 contract
Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default on the part of Tenant under this Lease or the 13480 Lease. If Tenant shall breach any provision of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)hereunder, in each case beyond applicable notice and cure periods, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which that Landlord reasonably estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Leasedefault, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable lawApplicable Laws, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and the use, application or retention of the Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "draw" by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (ia) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (iib) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (ivc) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant's bankruptcy estate shall have any right to restrict or limit Landlord's claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. U.S. Bankruptcy Code or otherwise.
Appears in 1 contract
Samples: Guidewire Software, Inc.
Application of Letter of Credit. If, (i) as result of any application or use by Landlord of all or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the Stated Amount, or (ii) the initial Stated Amount shall be increased by the Additional LC Amount, Tenant shall, within ten (10) days after Tenant’s receipt of notice from Landlord, provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or equal to the Additional LC Amount, as applicable) and any such additional letter of credit shall comply with all of the provisions of this Section 5, and if Tenant fails to comply with the foregoing, the same shall constitute an uncurable default by Tenant. Tenant may satisfy its obligations pursuant to the preceding sentence by instead providing to Landlord a replacement Letter of Credit in the required amount. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof, and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Without limiting the generality of the foregoing, if any such Letter of Credit expires earlier than the LC Expiration Date, Landlord will accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the Letter of Credit), which shall be irrevocable and automatically renewable as above provided through the LC Expiration Date upon the same terms as the expiring Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion. However, if any such Letter of Credit is not timely renewed, or if Tenant fails to maintain any such Letter of Credit in the amount and in accordance with the terms set forth in this Section 5, Landlord shall have the right to present the Letter of Credit to the Bank in accordance with the terms of this Section 5 and the proceeds of the Letter of Credit may be applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably and in good faith estimates that it will suffer as a result of any default (beyond the expiration of all applicable notice and cure periods) by Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need not be segregated from Landlord’s other assets. Landlord agrees to pay to Tenant within thirty (30) days after the LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under this Lease that was not paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default (beyond the expiration of all applicable notice and cure periods) by Tenant under this Lease; provided, however, that if prior to the LC Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or default (beyond the expiration of all TXXXXX XXXXX COURT, LA JOLLA [Orexigen Therapeutics, Inc.] applicable notice and cure periods) on the part of Tenant under this Lease or the 13480 Lease. If Tenant there shall breach any provision occur a default (beyond the expiration of all applicable notice and cure periods) under this Lease as set forth in Section 23 of this Lease or the 13480 Lease (or otherwise be in default hereunder or thereunder)Lease, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, Credit in part or in whole, to cure any breach or default (within the applicable cure period) of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably and in good faith estimates that it will sustain resulting from Tenant's breach or default of this Lease or the 13480 Lease, including, but not limited to, all damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease, by the 13480 Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled’s default. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a "“draw" ” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's ’s right to draw upon from the Letter of Credit. No condition or term of this Lease or the 13480 Lease shall be deemed to render the Letter of Credit [***] Confidential portions of this document have been redacted and filed separately with the Commission. conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereofthereof and that, and (iv) in the event Tenant becomes a debtor under any chapter of the Federal Bankruptcy Code, neither Tenant, any trustee, nor Tenant's ’s bankruptcy estate shall have any right to restrict or limit Landlord's ’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Federal Bankruptcy Code. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or any proceeds thereof be (i) deemed to be or treated as a “security deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of such Section 1950.7, or otherwise(iii) intended to serve as a “security deposit” within the meaning of such Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve as a security deposit and such Section 1950.7 and any and all other laws, rules and regulations applicable to security deposits in the commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and (B) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws.
Appears in 1 contract
Samples: Work Letter Agreement (Orexigen Therapeutics, Inc.)
